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Suit No. 1177 of 1954, decided on 20th September 1955.
, S. 167 (8), read with Notification No. 51 dated 27th December 1950‑Mere act of taking out, or attempting to take out, gold warrants confiscation ‑Government of India Act, 1935, S. 226.
Under section 167 (8), Sea Customs Act (VIII of 1878) read with Notification No. 51 dated 27th December, 1950, the mere act of taking out or attempting to take out gold from Karachi to Dacca by air is sufficient to warrant seizure and confiscation of the gold, and assuming that any illegality was committed by the Customs officials it would not obviate the bar of section 226 of the Government of India Act 1935 against a suit concerning such confiscation being entertained on the original side of the Chief Court.
Bar of section 226 of the Government of India Act, 1935 comes into play unless it be alleged and ultimately shown that the official concerned acted mala fide and absurdly in the belief that the procedure which he adopted was according to law for the time being in force.
Richard Spooner and Bomanjee Nowrojee v. Juddow (widow) Moore's Ind. App. Vol. 4 page 353, Governor‑General in Council v. Raleigh Investment Co. Ltd., A I R 1944 F C 51 and Governor‑General in Council v. Shiromani Sugar Mills Limited A I R194 6FC 16 at page 24 rel.
Ahsanullah for Plaintiff.
S. Nasiruddin for the Crown.
---The plaintiff alleges that on 14th August 1951, he was travelling from Karachi to Dacca by air and was taking with him to Dacca, gold of the value of Rs. 71,500, that contrary to procedure, rule and regulation of the Customs under Sea Customs Act, 1878, no declaration form was given to the plaintiff for making the declaration nor any declaration was called for about the carrying of gold from him and consequently no written declaration about his carrying of gold in his belt was made, that for reasons best known to the Customs Officials of the defendants a demand was made and the gold was disclosed by the plaintiff who was not even then given any declaration form but on the contrary was asked to hand‑over the gold to the Customs Authority, that the defendants wrongfully proceeded to make a show of legaliza tion of the act by proceeding to make an order purported to be made under No. S. G. B. 50/51 dated 7th September 1951 whereby the said gold belonging to the plaintiff was wrong fully confiscated, that the proceedings from seizure to confiscation conducted by the defendants was illegal, ultra vires and wrong, as the mandatory provisions of the Sea Customs Act, 1872 was not complied by the defendants and the subsequent proceedings were thus vitiated, wrong and illegal, that by reason of wrongful act of the defendants the plaintiff suffered damages amounting to Rs. 71,500 and that the plaintiff is entitled to recover the same from the defendants.
The order dated 7th September 1951 referred to in the plaint runs thus
"Examination of the person of Mr. Shamsuddin a passenger bound for Dacca per A/C. AP‑AEH on 14th August 1951, revealed that 16 Slabs of gold weighing 8211/8 tolas and valued at Rs. 72,658‑8‑0 concealed in a leather belt were tied round his waist. The export of gold out of the capital of the Federation is restricted except under a licence issued by the appropriate authority. No such licence was forthcoming.
The facts of the case disclose an attempt to export the gold without the requisite permit in contravention of Government of Pakistan. Notification No. 51 dated 27th December, 1950 read with section 19 of Sea Customs Act. The offence committed by Mr. Shamsuddin attracts the provisions of section 167 (8) of the Sea Customs Act under which the gold is liable to confiscation. It is therefore confiscated. The owner thereof is, however, given an option under section 183 ibid to pay in lieu of such con fiscation a fine of Rs. 1,00,000 (Rupess one Jac only). The option must be exercised within the four months of the date of this order. If the fine is paid within the time limit specified herein, the gold may be released back on payment of Customs Charges, if any."
The Federation of Pakistan the defendants in the case admitted that gold was being taken by the plaintiff from Karachi to Dacca by air, it was taken possession of by the Customs Authorities and confiscated but they alleged that the plaintiff on being questioned denied having been in possession of any gold, that he was found in suspicious circumstances and on being checked was found in possession of gold 821‑1/8 tolas in weight that the plaintiff could not take the gold without a requisite licence and that all the proceedings from seizure to confiscation were made in good faith and in accordance with law.
The defendant further alleged that the plaintiff filed an appeal before the appellate authority and also submitted a Revision Petition to the Central Government and both authorities upheld the order of confiscation and that in any event the suit was barred by the provisions of section 226 of the Government of India Act as the subject matter of the suit concerned the Revenue or any act ordered or done in the collection thereof. The defendant relied on the following Notification dated 27th December, 1950.
"No. 51. In exercise of the powers conferred by section 19 of the Sea Customs Act, 1878 (VIII of 1878) the Central Government is pleased to prohibit the bringing into or taking out by sea or air across any customs frontier in the Provinces or the Capital of the Federation of gold in any form, except in accordance with and under the conditions of a permit issued by the State Bank of Pakistan Provided that nothing in this notification shall apply to the personal Jewellery of a passenger exported or imported by him in good faith for his own use and forming part of his baggage."
The following preliminary issue was framed
1. Whether the suit is barred by section 226 of the Government of India Act, 1935.
This issue is now before me for disposal.
Decision with reasons thereof
Issue.‑Whether the suit is barred by section 226 of the Government of India Act.
The plaintiff admits that he was taking gold from Karachi to Dacca by air without any permission and the Notification dated 27th December prohibits taking out by sea or air across any custom frontier in the Provinces or the Capital of Federa tion of gold in any form except in accordance with and under the conditions of a permit issued by the State Bank of Pakistan. It is nobody's case that any permit had been issued by the State Bank of Pakistan. Obviously there was violation of the Notification, so as to attract application of section 167 (8) of the Sea Customs Act. The effect of section 167 (8) of the Sea Customs Act is that if any goods, the exportation or importation of which is prohibited or. restricted, is imported or exported or any attempt is made to import or‑ export, such goods are liable to confiscation.
The contention of the learned counsel for the plaintiff, however, is that the gold could not be seized unless, prior to seizure, the plaintiff was called upon, to make a declaration and he failed to make a declaration or concealed the existence of gold in his declaration. I do not find any provision to that effect in the Sea Customs Act or any rules made there under. The learned counsel, however, argues that there is a custom that every passenger is called upon to make a declaration and as no declaration in writing was called for from the plaintiff, the seizure and subsequently the confisca tion was contrary to law. The learned counsel for the Federation of Pakistan argues that in the first place there is no law or rule which requires the Customs Authorities to call upon a passenger to fill in a declaration form. The mere act of taking out or attempting to take out gold from Karachi to Dacca by air is sufficient to warrant seizure and confiscation of the gold and assuming that any illegality was committed ‑4 it would not obviate the bar of section 226 of the Govern ment of India Act. It is, therefore, to be seen what is the scope of section 226 of the Government of India Act. The section runs thus
" (1) Until otherwise provided by Act of the appropriate legislature, no High Court shall have any original jurisdiction in any matter concerning the revenue or concerning any act ordered or done in the collection thereof according to the usage and practice of the country or the law for the time being in force.
(2) A bill of amendment for making such provision as aforesaid shall not be introduced into or moved in the Federal or a Provincial Legislature without the previous sanction of the Governor‑General or, as the case may be, of the Governor."
The language of the section is mandatory and covers every matter concerning Revenue or concerning any act ordered or done in the collection thereof according to usage and practice of the country or the law for the time being in force. This section has been subject of interpretation in various cases and I may note some of them. The leading case on the point is that of Richard Spooner and Bomanjee Nowrojee. v. Juddow (widow) (Moore's Ind. App. Vol. 4 page 353
). Their Lordships of the Privy Council observed
" There can be no rule more firmly established than that if parties bona fide and not absurdly believe that they are acting in pursuance of statutes, and according to law, they are entitled to the special protection which the Legislature intended for them, although they have done an illegal act ..If Indian revenue‑officers have fallen into a mistake, or without bad faith have been guilty of an excess in executing the duties of their office, the object of the Legislature, has been, that they should not be liable to be sued in a civil action before the Supreme Courts.
Their Lordships concluded in the following words
" We are, therefore, bound to differ from the Judge below, who says, "that the jurisdiction of his Court has not been taken away, when the act complained of is not warranted by the country, or by the Company's Regulations." If it concerned the revenue, or was a matter concerning an act bona fide believed to be done according to the Regulations of the Governor in Council of Bombay, his jurisdiction was gone, although prima facie it appeared to be a trespass over which his jurisdiction might be properly exercised."
Similar question came up for consideration before the Federal Court in case Governor‑General in Council v. Raleigh Investment Co., Ltd. (AIR 1944 F C 51) and in case Governor‑General in Council v. Shiromani Sugar Mills Limited (AIR1946FC16atpage24). In the latter case their Lordships of the Federal Court observed as follows
" The learned judges in the Court below were able to come to the conclusion that the principles in 4 M I A 353 did not apply when the complaint was that the whole procedure was not according to the law for the time being in force, or that the revenue authorities had no legal power to do what they had done, as opposed to complaint of some irregularity in carrying out procedure authorised by law or an irregularity in doing something which they had power to do. We regret that with respect we feel bound to differ from the learned Judges in their limited view of the application of the principles in 4 M I A 353. On the facts of that case, we doubt if the officials were only guilty of a mere irregularity of procedure. But be that as it may, it seems to us that there is really no difference in principles between the case of an official believing bona fide and not absurdly that some illegal step which he takes in executing a legally authorised procedure is itself according to the law for the time being in force, arid that of another official believing bona fide and not absurdly that the procedure which he adopts in a particular case is itself according to the law for the time being in force."
The plaintiff relies on certain decisions of the Bombay High Court, but they are expressly over‑ruled by the Federal Court and are of no value.
It is clear from the above that bar of section 226 of the Government of India Act will come into play unless it be alleged and ultimately shown that the official concerned acted mala fide and absurdly in the belief that the procedure which he adopted was according to law for the time being in force. There is no plea of mala fide in the plaint at all. The main ground of the charge mentioned in the plaint is that the Customs Officials acted contrary to the provisions of the Sea Customs Act. On the allegations made in the plaint the case. does not fall within the exception contemplated by their Lordships of the Privy Council or of the Federal Court. The words of the section are wide enough to cover the allegations made in the plaint. Bar of section 226 of the Government of India Act applies and this Court has no jurisdiction to try this case. The issue is decided accordingly.
I am not inclined to allow costs to the defendants in this case. It is the practice if not the rule that every passenger is called upon to make a declaration as to the articles in his possession when he embarks a plane. The plaintiff was going from one part of the country to another and he might have thought that carrying of gold from one part of the country to another is not prohibited. It is not shown that the plaintiff was aware of the Notification which prohibited taking of gold from Karachi to Dacca. He has already suffered by losing gold of sufficient value. He need not be taxed more.
I dismiss the suit but order that the parties bear their own costs.
A.H. Suit dismissed.
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