# SHEIKH MOHD. OMER v. COLLECTOR OF CUSTOMS, CALCU1TA I: ORS

- **Citation:** [1971] 2 S.C.R. 35
- **Court:** Supreme Court of India
- **Decided:** 1970-09-04
- **Case number:** Civil Appeal No. 1645 of 1966
- **Bench:** K. S. Hegde, A. N. Grover
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sheikh-mohd-omer-v-collector-of-customs-calcu1ta-i-ors-5325
- **Pages:** 5

## Headnote

C11.H01ns Act, 1962, s. l l l (d)-"Any prOhibition" if includes restriction\-Afare i111ported for brecdinR. if pet aninzal.
The appellant, a breeder of horse' imported into India a mare "Jury
Maid ... for purpose of breeding.
The customs authorities objected on the
ground that the mare had ·been imported in contravention of the provisions of the Imports and Exports (Control) Act. 1947 and confiscated
the mare.
On the questions, (i) whether the mare was a "'pet animal"
\\'ithin the meaning of that expression in the notification dated January 2.
I 961 ·issued by the Government and therefore exempt as personal baggage
and (ii) whether the expression .. prohibition" contained in s. 11 I ( d) of
the Custom. Act. I962 includes prohibition of imports coupled with a
p0\1,:cr to pennit importation under certain conditions,
HELD: (il The mare .. Jury Maid" was not a 'pet animal'.
A pet
is .. any animal tamed _and fondled".
There was no evidence to show
that jury maid was tamed or treated with fondness by the appellant. He
obtained that· animal on lease for certain specified purpose and in respect
of that animal he had only a business connection.
(ii) The expression .. any prohibition" in s. ll l (d) of the Customs
Act. I 962. include-s restrictions.
Merely because s. 3 of the Imports and
EX ports (Control) Act, 194 7, uses three different expressions "prohibiting"'. "restricting" er .. otherwise ~controlling," the amplitude of the word
"anv prohibition in s. 111 (d) of the Act cannot be cut down.
"Any
prohihition" means every prohibition and restriction is one type of pro·
hibition.
From item ([) of Sch. I Part IV to Imoort Control Order,
1955. it is clear that im.port of living animals of air sorts is prohibited.
But certain exc,ptions are provided for.
But none the less the prohibition continues.

## Text

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35
SHEIKH MOHD. OMER
v.
COLLECTOR OF CUSTOMS, CALCU1TA I: ORS.
September 4, 1970
[K. S. HEGDE AND A. N. GROVER, JJ ]
C11.H01ns Act, 1962, s. l l l (d)-"Any prOhibition" if includes restriction\-Afare i111ported for brecdinR. if pet aninzal.
The appellant, a breeder of horse' imported into India a mare "Jury
Maid ... for purpose of breeding.
The customs authorities objected on the
ground that the mare had ·been imported in contravention of the provisions of the Imports and Exports (Control) Act. 1947 and confiscated
the mare.
On the questions, (i) whether the mare was a "'pet animal"
\\'ithin the meaning of that expression in the notification dated January 2.
I 961 ·issued by the Government and therefore exempt as personal baggage
and (ii) whether the expression .. prohibition" contained in s. 11 I ( d) of
the Custom. Act. I962 includes prohibition of imports coupled with a
p0\1,:cr to pennit importation under certain conditions,
HELD: (il The mare .. Jury Maid" was not a 'pet animal'.
A pet
is .. any animal tamed _and fondled".
There was no evidence to show
that jury maid was tamed or treated with fondness by the appellant. He
obtained that· animal on lease for certain specified purpose and in respect
of that animal he had only a business connection.
(ii) The expression .. any prohibition" in s. ll l (d) of the Customs
Act. I 962. include-s restrictions.
Merely because s. 3 of the Imports and
EX ports (Control) Act, 194 7, uses three different expressions "prohibiting"'. "restricting" er .. otherwise ~controlling," the amplitude of the word
"anv prohibition in s. 111 (d) of the Act cannot be cut down.
"Any
prohihition" means every prohibition and restriction is one type of pro·
hibition.
From item ([) of Sch. I Part IV to Imoort Control Order,
1955. it is clear that im.port of living animals of air sorts is prohibited.
But certain exc,ptions are provided for.
But none the less the prohibition continues.
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1645 of
1966.
Appeals from the Judgment and order dated February 7, 1966
of the Calcutta High Court in Appeal No. 114 of 1965.
A. N. Sinha and P. K. Mukherjee, for the appellant.
8. Sen and S. P. Nayar, for the respondent.
The Judgment of the Court was .delivered by
Hegde, J. In this appeal by certificate two questions of law
arise namely (I) whether on. the facts of this case the mare "Jury
Maid" can be considered as a "pet animal" within the meaning of
that expression in the notification issued by the Government of
-"-
36
SUPREME COURT REPORTS
[1971 J 2 S.C.R
India, Ministry of Commerce and Industries, Import Trade Control
Public Notice No. l-I.T.C.(PN)/61 dated 2nd January 1961 and
(2) whether the expression "prohibition" contained ins. Ii l(d) of
the Customs Act 1962 (which will hereinafter be referred to as lhe
Act) includes prohibition of imports coupled with a power to permit importation under certain conditions.
The facts relevant for the purpos~ of deciding the jlOints in
issue are not many.
They may now be stated.
The appellant,
.Sheikh Mohd. Omer, as found by the High Court was a deaier in
horses especially"in racing horses. He was breeding hmses oul ol
mares owned by him.
He owned two stallions by name "Pida"
and "Rontgen". He claimed to have had a considerable reputation as race horse own~r and for racing with horses bred by himself.
He appears to have won several prizes awarded for horse
races. In September, 1964, the appellant went to Europe.
Whil~
he was in Switzerland he received a letter from M/s. British Bloodstock Agency Ltd., lqndon informing him that one of its clients
was interested in obtainif)g a foal by stallion "Pieta" from the said
client's Brood Mare.
After some correspondence it WP.s agreed
that the Glasgow Stud Farm would lease a brown English rnare to
the aopellant which would be shipped to India and would be kept
there "pending her producing two foals by the appellant's breeding
race horse "Pieta" after which the mare will be return.:d to Englai;d
with on:? foal.
The appellal't returned to Calcutta on November
7, 1964 by air.
At the Duin Dum Airport he gave a declaration
showing that his seven uhaccompanied baggages will follow him
by sea r.r by air. Eventu11lly, "Jury Maid" was shipped to Calcutta
by s.1. 'Chinkoa" which reached Calcutta port on December 25,
1964. When the appellant tried t-0 take delivery of the same, the
Customs authorities objected on the ground that the mare had been
imported in contravention of the provisions o~ the Imports
and
Exports (Contrail Act, 1947. After due enqmry the Customs authorities confiscated the mare. At tl)is stage, it may be mentioned
that when the mare came to India, it was pregant. After its arrival in India it gave birth to a foal and thereafter irdied. The foal
given birth by it is alive.
The first question that arises for decision is whether by importing the mare in question the appellant contravened the provisions
·Of the Act.
Section 111 ( d) of the Act provides :
'The following goods brought from a place outside India shall be liable to confiscation :-
(d) any goods which are imported or attempted to be
imported or are brought within the Indian customs
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MOHD. OMER v. COLLECTOR CUSTOMS (Hegde, J.)
3 7
waters for the purpose of being imported, contrary to any
prohibition imposed by or under this Act or any other
law for the time being in force."
"Prohibited goods" is defined in s. 2(33) of the Act. That
definition reads :
" "prohibited goods" means any goods the import or
export of which is subject to any prohibition under, this
Act or any other law for the time being in force but
does not include any such goods in respect of which the
conditions subject to which the goods are permitted to
be imported or exported have been complied with."
From this definition, it is clear that "prohibited goods" under
the Act includes also such goods as may be imported by complying with the prescribed conditions. It is admitted that the import of horses or mares is not prohibited under the Act. Therefore
the question is whether such import is prohibited "by any other
law for the time being in force."
Section 3(1) of the Imports and Exports (Control) Act, 1947
provides:
"Powers to prohibit or restrict imports and exports.-
(!) The Central Government may, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise controlling, in all cases or
in specified classes of cases and subject to such exceptions, if any as may be made by or under the order;
(a) the import, export, carriage coastwise or shipment as ships' stores of goods of any specified description;
(b) the bringing into any port or place in India of
goods of any specified description intended to be taken
out of India without being removed from the ship or
conveyance in Which they are being carried."
In exercise of the powers conferred by s. 3 of the Imports and
Exports (Control) Act, 1947, the Government of India promulgated an order known as the "Imports Control" Order, 1955
dated 7th December, 1955. Clause 3(1) of the said order reads :
"Restriction on Import of Certain Goods.-(!) Save
as otherwise provided in this order, no person shall import any goods of the description specified in Schedule
I, except under, and in accordance with, a licence or a
customs clearance permit granted by the Central Government or by any officer specified in Schedule IL"
38
SUPREME COURT REPORTS
I j 971] 2 S.C.R.
The relevant Entry is to be found in Item I of Schedule I in
part IV which is as follows :-
( I)
.1.
Na:ne of Artklc
- - - _ _,._____._
(2)
Part IV
Ani111ab,
-:!Orts.
ltc1n of First S1Jhcdul>J.: .. to
Indian Tariff Act 1934.
(J)
livini :ill I and l (I). ··
A
B
By the notification dated January 2, 1961 referred to earlier
certain exemptions were provided for personal baggage of a passenger.
One of the ex.emptions granted is for clearance of one
dog, pet animal and birds in a limited number subject to certain
C
conditions.
Now we shall go back to the question whether ··Jury Maid"
can be considered as a pet animal. A pct is explained in Concise
Oxford Dictionary of Current En11ish as "any animal tamed and
kept as favourite or treated with fondness."
The shorter Oxford Dictionary explains that word thus :
"Any animal that is domesticated or tamed and kept
as a favourite or treated with fondness. esp. applied to
a lamb reared by hand."
The same word is explained in Chamber's Twentieth Century DicD
tionary thus :
E
"Any animal, tamed and fondled."
There is no evidence to show that "Jury Maid" was tamed.
That apart the "Jury Maid" was not fondled or treated with fondness by the appellant.
He obtained that animal on lease for certain specified purpose.
In respect of that animal he had only a
business connection.
Rejecting the .contention of the appellant
that"Jury Maid" is a pet animal, the learned judges of the appellate bench of the Calcutta High Courr observed :
"There is no such species of animal known as "Pet
animal". What happens is that certain kind of animals
or birds are often domesticated and when a particular
person becomes fond of such an animal or bird it may
be said to have become a "pet" of that person and may
be called a "pet animal". It is a subjective expression.
In the present case, the mare "Jury Maid" was not the
"pet" of any particular person. So far as the appellant
is concerned, he had not even seen the mare when it
arrived in India. It cannot be said that he became fond
of it at any relevant point of time. · In actual life we
find that mell have at :wmes fond of strange animals like
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MOHD. OMER v. COLLECTOR CUSTOMS (Hegde, J.)
39
lions, tigers and even c~ocodiles. It was not intended to
make the baggage mies a warrant for transforming passengers ships into a Noah's Ark .... "
We entirely agree with those observations and reject the contention of the appellant that "Jury· Maid" was a pet animal.
This takes us to the. question whether by importing the. mare
"Jury Maid" the appellant contravened s. l ll(d) read with s. 125
of the Act. It was urged on behalf of the appellant that expression "prohibition" ins. lll(d) must be considered r.s a total prohibition and that expression does not bring within its fold the restrictions imposed by cl. (3) of the Imports Control Order, 1955.
According to the learned Counsel for the appellant cl. (3) of that
order deals with the restrictions of import of certain 5oods. Such
a restriction cannot be considered as a prohibition under s. l ll(dJ
of the Act.
While elaborating his argument the learned Counsel
invited our attention to the fact that while s. 111 (d) of the Act
uses the word "prohibition",
s. 3 of the Imports and Exports
(Control) Act, 194 7 takes in not merely prohibition of imports
and exports, it also includes "restrictions or otherwise controliini.;'"
all imports and exports. According to him restrictions caM8t bt'
considered as prohibition more particularly under the Imports and
Exports (Control) Act, i 94 7 as that statute deals with "restrictions or otherwise controlling" separately from prohibitions.
We
are not impressed with this argument. What cl. ( d) of s. 111 says
is that any goods which are imported or attempted to be imported
contrary to "any prohibition imposed by any law for the time
being in force in this country"' is liable to be confiscated. "Any
prohibition" referred to in that section applies to every 4l'11e
of
"prohibition".
T~at prohibition may be complete or partial. Anv
restriction on import or export is to an extent a prohibitimi
The expression "any prohibition" in s. 111 (d) of the Customs Act
1962 includes restrictions. Merely because s. 3 of the Imports and
Exports (C()ntrol) Act, 1947 uses three different expressions·"prohibiting" "restricting" or "otherwise controlling", we can~ot cut
down the amplitude of the word "any prohibition·· in s. 11 Hd)
of the Act. "Any prohibition" menns every prohibition. In other
words all types of prohibitions. Restriction is one type of prohibition.
From item (I) of Schedule I. Part IV to Jmpo1t Control
Order, 1955, it is clear that import of living animals of all sorts
is prohibited. But certain exceptions are provided fer. But none
the less the prohibition continues.
In the result this appeal is dismissed with costs.
Y.P.
A ppeo/ dismissed.