Collector Of Central Excise, Madras v. A.A. Dawood Al Marzook

1. The collector of central excise, Madras imposed a penalty of rs. 50,000 under s. 167 [8] of the sea customs act, Viii of 1878 on respondent no. 1 by order dated 23rd october 1958 consequent on the seizure and confiscation of some 12,496 tolas of contraband gold from a vessel partly owned by the first respondent. The first respondent is an arab national residing in arabia and it has not therefore been possible for the customs authorities to recover the penalty. The second respondent, A resident of kozhikode, Has admitted in two signed statements made by him before the superintendent of central excise [customs preventive], Madras and the assistant collector of central excise [customs preventive], Calicut that he is holding an amount of rs. 35,530 on behalf of the first respondent and has also undertaken not to transfer the amount except under the orders of the collector of central excise, Madras. On 13th december 1958 the collector of central excise, Madras, Notified to the district magistrate, Kozhikode, Regarding the case and requested him to take action under s. 193 of the sea customs act to enforce payment of penalty. The district magistrate transferred those proceedings to the additional first class magistrate, Kozhikode who by order, Dated 20th january 1959 dismissed the petition and refused to take action for the recovery of the penalty.

2. This revision is filed by the collector of central excise, Madras, Against the said order.

3. The learned magistrate refused to take action under s. 193 on two grounds, The first of which was that there was no acceptable material from which it could be presumed that respondent no. 2 was holding the amount on behalf of counter - petitioner no. 1 except a statement alleged to have been recorded from him by some customs officials. The second ground is that:

"even presuming that the said amount was held in trust by respondent 2 on behalf of respondent 1, As admittedly no goods were available to be sold in realisation of the amount as provided for in para 1 of s. 193, Application of the procedure set out in para. 2 did not arise."

4. It has to be mentioned even at the outset that the first ground, Namely, Whether the second respondent is holding any money on behalf of the first respondent would come up for consideration only after steps are taken for the realisation of the amount from the second respondent and any objection is put forward by him to the effect that he is not in possession of such money. The reasoning adopted by the learned magistrate that application of the procedure set out in para 2 does not arise in the absence of goods to be proceeded against under para 1, Is also faulty. On the other hand the question of proceeding under para 2 arises for consideration only when an officer of customs is unable to realise the penalty from the sale of the goods of the offender as provided for in para 1 of the section.

5. The real question arising for consideration is whether the magistrate had jurisdiction to proceed against the money in the hands of respondent 2. S. 193 reads thus:

1. When a penalty or increased rate of duty is adjudged against any person under this act by any officer of customs, Such officer, If such penalty or increased rate be not paid, May levy the same by sale of any goods of the said person which may be in his charge or in the charge of any other officer of customs.

2. When an officer of customs who has adjudged a penalty or increased rate of duty against any person under this act is unable to realize the unpaid amount thereof from such goods, Such officer may notify in writing to any magistrate within the local limits of whose jurisdiction such person or any goods belonging to him may be, The name and residence of the said person and the amount of penalty or increased rate of duty unrecovered; and such magistrate shall there - upon proceed to enforce payment of the said amount in like manner as if such penalty or increased rate had been a fine inflicted by himself. "

the procedure for the recovery of a fine inflicted by the magistrate is given in s. 386 of the criminal procedure code. That section authorises the magistrate [a] to issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offenders; [b] to issue a warrant to the collector of the district authorising him to realise the amount by execution according to civil process against the movable or immovable property, Or both of the defaulter. Now it is not disputed that the customs officer who adjudged the penalty was unable to realise it as provided under s. 193 [1] of the customs act. Nor is it disputed that the magistrate if he were to take action under s. 386 [1] of the criminal procedure code, Can proceed against the money held by the second respondent provided that money belongs to the first respondent. Therefore the only question is whether the magistrate had jurisdiction to take action for realising the penalty. According to s. 193 [2] only

"the magistrate within the local limits of whose jurisdiction such person or goods belonging to him may be"

is clothed with the jurisdiction to proceed in the manner provided therein. Admittedly in this case "the person", Namely, The first respondent is not within the jurisdiction of the magistrate. It remains to be seen whether any goods belonging to the first respondent is within his jurisdiction. If the term "goods" would take in money also, Then the presence of the money in the hands of the second respondent would give the magistrate the necessary jurisdiction.

6. So, The question for determination reduces itself to this, Namely whether the term "any goods" appearing in s. 193 [2] includes money also. According to sri kuttikrishna menon, The learned counsel for the respondent though goods may include money in certain circumstances, Generally it is not used in that sense and never so in criminal law. It is further contended by him that since the use of the word 'goods' in para i of the section necessarily excludes money [as it deals with saleable goods] the word when it occurs in another para of the same section has to be given the same meaning. On the other hand the position taken up by the learned public prosecutor is that it is the general principle of interpretation of statutes that a procedural statute must be given a liberal construction so as to promote justice and to carry out the object of the legislation. According to him since s. 193 is the only provision laying down the procedure to recover the penalty already imposed, It should be so interpreted as to carry out its purpose of enforcing the penalty. He further contends that the rule that the same word appearing in different sections of the same statute or in the same section has normally to receive the same meaning is not an unalterable rule of construction and if and when there is good reason to find that it is used in two different senses nothing stands in the way of the courts giving the word a different meaning.

7. In chamber's twentieth century dictionary the word'goods' is defined as movable property, Chattels, Merchandise, Etc., And we find in the law lexicon of british india that'movable property' means property of every description except immovable property and that it includes money [vide law lexicon of british india by p. Ramanatha aiyer - page 836]. It was also held in thresia v. Chacko 1957 klt. 584 that the term movable property in the first column of art. 89 of the indian limitation act will include money. In prudential staff union v. Hall [1947 i k. B. 685 while considering the question whether an insurance policy on 'moneys' was one on 'goods' coming under the purview of s. 4 of the life assurance act 1774 [english act] it was held:

"the present policy was a policy on moneys in a form in which such moneys could physically be burned or asported. For some purposes it may be that moneys are not to be regarded as goods, But, In any opinion, Moneys as defined for the purposes of this policy are 'goods' as that word in its context, And having regard to the scope and purview of the enactment, Is used in the life assurance act, 1774"

.

"in mills, Goods is nomen generalissimum, And, If there is nothing to limit it, Will comprehend all the personal estate of the testator, As stocks, Bonds, Notes money, Plate, Furniture, Etc."

[bouvier's law dictionary vol. Ii, Page 1364] thus it seems to us that it will not be unsafe to take it that in certain contexts goods in its wider sense will include money also. The learned defence counsel himself conceded that 'goods' in its comprehensive sense will take in money. His argument however is that in criminal statutes the term 'goods' never has such a remaining. Reference was made to stroud's law dictionary wherein it is stated:

"in a criminal statute "goods, Wares and nerchandise" does not include either british or foreign money" (stroud law dictioary vol. 2, Page 1249).

whatever be the validity of that principle in its application to criminal statutes in general, We do not think it can be applied in interpreting procedural provisions. S. 193 is not a penal provision. It only lays down the procedure to be adopted for the recovery of a penalty already imposed. It is well recognised that procedural law calls for a liberal interpretation.

8. Sutherland discussing the interpretation of statutes relating to procedure states:

"legislation designating the method of enforcing and establishing substantive rights, As a general rule, Is enacted not for an end in itself, But to provide a better way of accomplishing an end. Therefore the judiciary has generally been very generous in the treatment of statutes relating to procedure"

(sutherland, Statutory construction - 3rd edition - vol. 3, S. 6802).

again on page 302 the learned author observes: -

"it is the policy of the law to ensure the collection of all taxes and whenever it is possible on any theory to do so the courts will construe the statutes to accomplish that result. Therefore statutes establishing the procedure for the collection of taxes are given a liberal construction. And the same is true in the construction of legislation enacted to prevent frauds upon the revenue."

if that be, Then an interpretation of the term "any goods" appearing in s. 193 (2) the purpose of which is the recovery of the penalty from the defaulter, In such manner as to exclude money will far from promoting the purpose of the law only result in placing unnecessary obstacles in the way of speedy and efficient realisation of the penalty. The position will be clear if we consider a practical example. For instance in a case where an officer of customs who has adjudged a penalty against a defaulter but was not able to recover the penalty under s. 193 [1], Comes to understand that the defaulter has a sum of money within the territorial jurisdiction of one magistrate and a motor car in the jurisdiction of another magistrate, If we are to exclude money from the purview of goods, Then the customs officer will be prevented from realising the penalty through the first magistrate who can recover it for him by the straight - forward and easy method of appropriating the amount of the penalty from the defaulter's money available in his jurisdiction. Instead the officer will have to petition the other magistrate to recover the penalty through the more devious and less efficient method of attaching the defaulter's motor car and bringing it to sale. The penalty here is a sum of money and it stands to reason that for the recovery of a sum of money from the defaulter, Money as such belonging to the defaulter is not to be discarded in preference to his other goods which can be converted into the form of money only by a complicated process. It is not as if the penalty inflicted on the defaulter is something that should be recovered only from certain special categories of the defaulter's goods. The section itself provides that the magistrate proceeding to take action under it is competent to recover the penalty as if it were a fine imposed by himself which means that the defaulter's property of every type movable and immovable is liable to be proceeded against. When it is permissible to proceed against every type of property to realise a sum of money from the defaulter it seems unreasonable to hold that money itself should be excluded from the category of goods the presence of which within the magistrate's territorial limits gives him the jurisdiction to take action.

9. Another contention of the learned counsel for the respondent is that by the application of the well - recognised principle of interpretation that the same meaning should be given to the same words occurring in different parts of the same statute, The term 'goods' appearing in para 2 of s. 193 cannot be given a wider meaning than the same term appearing in para 1 which clearly is restricted to 'saleable goods'. The above principal came up for consideration by the supreme court in s. V. Parulekar v. D. M. Thana air. 1957 sc. 23. The argument based on the general rule of construction of statutes that it is at all events reasonable to presume that the same meaning is implied by the use of the same expression in every part of an act was answered by their lordships as follows: -

"the rule of construction contended for by the petitioners is well - settled, But that is only one element in deciding what the true import of the enactment is, To ascertain which it is necessary to have regard to the purpose behind the particular provision and its setting in the scheme of the statute. "the presumption" says craies, "that the same words are used in the same meaning is however very slight, And it is proper if sufficient reason can be assigned, To construe a word in one part of an act in a different sense from that which it bears in another part of an act. "

their lordships also quoted with approval the following observation in maxwell on interpretation of statutes:

"but the presumption is not of much weight. The same word may be used in different senses in the same statute, And even in the same section."

10. There is thus no bar against assigning different meanings to the term "any goods" appearing in the two paras of s. 193 if there is sufficient reason for doing so. However we do not think it necessary to invoke the above principle to solve the problem before us. Here it is not as if the term is used in two different senses in the two parts of the section. The term "any goods" appearing in paragraph one may be given a restricted meaning, Not because any restriction is inherent in the term'goods' standing by itself, But because of the reference there to the sale of the goods. A more or less similar meaning seems to have been given to the word 'goods' as including money by raman nayar, J., In a recent case of this court reported in bernado v. Collector of customs 1959 klt. 1326. In discussing the validity of the action of the customs officers in taking into custody money carried by the delinquent on his person the learned judge observed that:

"regarding the money carried by the petitioner on his person ($1,605 and rs. 250) and admittedly taken into charge by the customs officers, It is claimed that the department has a lien over this money under s. 193 of the sea customs act for the penalty of rs. 6,000 imposed on the petitioner and it is said that the money will be returned to the petitioner as soon as the penalty is paid. Since s. 193 authorises the realisation of the penalty adjudged from any goods of the person concerned in the charge of an officer of customs, It seems to me that the department is entitled to keep these currency notes until the penalty is paid."

we are therefore of the view that the term any goods' occurring in s. 193 [2] of the sea customs act is used in its wider sense so as to include money also and consequently the presence of a sum of money belonging to the defaulter within the territorial jurisdiction of a magistrate makes it competent for him to take action under the section.

11. In the result the order of the learned magistrate is set aside and the case is sent back for fresh disposal according to law and in the light of the observations made above.

allowed.