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Civil Appeal No. 33 of 1957, decided on 21st January 1958.
(On appeal from the order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 16th October 1956, in Writ Petition No. 352 of 1956).
--- S. 19‑"Across any Customs frontier"‑Words apply to goods taken from West Pakistan to East Pakistan by air.
Held, that according to the adapted Notification of the old Government of India [India, F. D. (C. R.) No. 1‑X dated 1st April 1937] the Frontier of Pakistan was the "Customs frontier" and the relevant frontier for the purpose of a case involving taking out of goods from West Pakistan to East Pakistan was the frontier with India. Owing to the peculiar geographical position where the two wings of the country are about 1200 miles apart with the foreign territory of India intervening, the taking of goods by land or air from one wing of Pakistan to another necessarily involves the crossing of the Indian frontier at one point or another and therefore the Customs frontier. The scheduled route, by which the Orient Airways plane was to take the appellant with the gold, was across this frontier and would infringe the Notification, if it was to be taken without permit.
--- S. 19‑"By land" includes "by air"‑Interpretation of statutes‑Principle of exten sion of statutes to new things.
Held, that by the principle of extension of statutes to new things, the words "by land" used in section 19, Sea Customs Act (VIII of 1878) include "by air".
The language of a statute is generally extended to new things which were not known and could not have been contemplated by the legislature when it was passed.
Unlike the sea, of which only the portion known as territorial waters belongs to the country bordering on it, while the high seas outside are international waters, the air strip up to the sky on the surface of the land of a country entirely belongs to the country and as an appendage to the land. It is true that in 1878 when the Sea Custom Act was passed carriage of goods or passengers by air was not contemplated ; but the principle of extension of statutes to new things is a well‑known principle of construction, and is applicable.
Faziur Rahman, Advocate, Supreme Court, instructed by M. Siddiq, Attorney for Appellant.
Faiyaz Ali, Attorney‑General for Pakistan (M. A. Pesh Imam, Advocate, Supreme Court, with him) instructed by Muzaffar Hassan, Attorney for Respondents.
Date of hearing : 21st January 1958.
.‑--This is an appeal by special leave of this Court from an order of the Karachi Bench of the High Court of West Pakistan, summarily dismissing the appel lant's petition for issue of a writ of mandamus or any other suitable writ on the Collector of Customs and the Central Board of Revenue, Karachi, ordering them to return or surrender the gold confiscated by the Collector.
The appellant, who is a goldsmith by occupation, was going from Karachi to Dacca by air on the 24th April 1951, with members of his family and one Mst. Zohra Bibi, who, the appellant states, was his maid servant. The party had booked their seats by the then Orient Airways Aircraft. The said Mst. Zohra Bibi was carrying with her 517 tolas of gold valued at Rs. 53,506‑11‑0 without a permit from the State Bank. The Customs authorities seized the gold on the ground that she was not permitted to take it out of the Federal Capital. On the 28th of April 1951, the Collector of Customs ordered the said Mst. Zohra Bibi either to pay a fine of rupees one lac or to suffer confiscation of the seized gold, which was ultimately confiscated in default of payment of fine. A Custom Appeal preferred by the appellant to the Central Board of Revenue against the said order was rejected on the 28th February 1952, whereupon the appellant filed a civil suit against the orders of the respondents, which was dismissed on the 11th July 1955. on the ground that the suit was barred by section 226 of the Government of India Act, 1935. Thereafter the appellant filed a' petition under Article 170 of the Constitution for the issue of a writ, which was summarily dismissed on the 16th October 1956. It was against this order of the High Court that the appellant obtained leave to appeal.
The Notification No. 51, dated the 27th December 1950, for infringement of which the gold was seized, was in the following terms :‑---
"In exercise of the powers conferred by section 1,9 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 personal jewellery of a passenger exported or imported by him in good faith for his own use and forming part of his baggage."
This Notification was published in the Gazette of Pakistan, Extraordinary, 1950, page 963 of the same date.
It was contended on behalf of the appellant that the said Notification is ultra vires of the powers of the Central Government conferred upon it under section 19 of the Sea Customs Act, as (1) taking of goods across any customs frontier is prohibited, but that the Pakistan Government has not defined any customs frontier and as a matter of fact there could be no customs frontier between West and East Pakistan ‑two parts of the same country, and (2) only taking by sea or land having been mentioned in section 19, taking by air is not covered by the section and the Notification relating to carriage by air is ultra vires. It was also contended that the real intention is to prohibit export and the process of export is not complete unless the goods reach their destination in a foreign country. There is no substance in any of these contentions for reasons to be stated presently.
Section 19 of the Sea Customs Act, as adapted after Independence, reads as follows :‑--
"The Central Government may from time to time, by Notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of the Provinces and the Capital of the Federation across any customs frontier as defined by the Central Government."
No customs frontier referred to in the above section was defined after Independence, but the Notification of the old Government of India [India, F.D. (C.R.), Notification--No. 1‑X, dated the '1st April 1937.] With adaptation was in force at the date when the gold was seized, which runs as follows :‑---
"In pursuance of entry 19 of List I of the Seventh Schedule to the Government of India Act, 1935, the Governor‑General hereby defines the customs frontier for the purposes of that entry as the frontier, whether one or more than one; whether sea or land, whether exterior or interior, of Pakistan."
The learned Attorney‑General appearing on behalf of the State stated that this was the definition of the customs frontier which was in force and no other customs frontier had been defined. So according to this Notification the frontier of Pakistan was the customs frontier, and the relevant frontier for the purpose of this case would be the frontier with India. Owing to the peculiar geographical position where the two wings of the country are about 1200 miles apart with the foreign territory of India intervening, the taking of goods by land or air from one wing of Pakistan to another necessarily involves the crossing of the Indian frontier at one point or another and therefore the customs frontier. The scheduled A route, by which the Orient Airways plane was to take the appellant with the gold, was across this frontier and would infringe the Notification, if it was to be taken without permit as in the present case. The first ground urged by the appel lant, is, therefore, not tenable.
The second ground, namely, that the insertion in the Notification of the words "by air" is ultra vires, as section 19 only mentions taking by sea or by land, is also not sustainable, as to our mind land includes air. Unlike the sea, of which only the portion known as territorial waters belongs to the country bordering on it, while the high seas outside are international waters, the air strip up to the sky on the surface of the land of a country entirely belongs to the country and as an appendage to the land. It is true that ‑in jb78 when the Sea Customs Act was passed carriage of goods or passengers by air was not contemplated ; but the principle of extension of statutes to new things is a well‑known principle of con struction, and is applicable to the present case. The principle has been stated as follows in Maxwell's book on Interpretation of Statutes, tenth Edition, page 79 :‑--
"Except in some cases where the principle of exclusively strict construction has been applied, the language of al statute is generally extended to new things which were note known and could not have been contemplated by the legis lature when it was passed. This occurs when the Act deals with a genus, and the thing which afterwards comes into existence is a species."
In pursuance of this principle the telephone was held to be a telegraph within the meaning of the Telegraph Acts of England, though not invented or contemplated at the time when telegraph came in vogue. We are, therefore, of opinion that the words "by land" used in section 19, include "by air". In the present case the scheduled route of the plane was over the land of Pakistan and India.
The third point raised by the appellant, namely, that the process of export is not complete unless the goods reach their destination in a foreign land, is equally untenable, as Sea Customs Act by section 167, item 8, makes even an attempt to export illegally an offence. So it is immaterial in the present case whether the export was complete or not.
The Attorney‑General appearing for the respondents drew our attention to Aircraft Rules, (Rules No. 55) made under the Aircraft Act of 1934, which runs thus :‑---
"No person in any aircraft entering or departing from Pakistan shall carry or allow to be carried in the aircraft any goods of which the import or export by sea or by land is prohibited by or under any law for the time being in force."
Under section 5 of the Aircraft Act the Central Government could make rules among others for (1) the prohibition or regulation of the carriage in aircraft of any specified article or substance, and, under section 16, had the power by Noti fication to apply customs procedure for infringement of the Aircraft Rules, for which one of the punishments is also confiscation. But as the Customs authorities proceeded under the Sea Customs Act and the prosecution was not under the Aircraft Act, it is not necessary to give any decision on this part of the contention. For the above reasons the appeal fails and is dismissed. Each party will bear its own costs.
A. H. Appeal dismissed.
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