Union of India & Ors Vs. M/S. Rai Bahadur Shree Ram Durga Prasad (P) Ltd. & Ors [1968] INSC 283 (19 November 1968)
19/11/1968 SIKRI, S.M.
SIKRI, S.M.
BACHAWAT, R.S.
HEGDE, K.S.
CITATION: 1970 AIR 1597 1969 SCR (2) 727 1969 SCC (1) 91
CITATOR INFO :
F 1971 SC 116 (3) RF 1976 SC1527 (5) R 1986 SC2014 (6)
ACT:
Foreign Exchange Regulation Act (7 of 1947), ss. 12, 22. 23 and 23A--Foreign Exchange Regulation Rules, 1952 r. 5 and Sea Customs Act (8 of 1878), s. 167(8)--Scope of-Form requiring declaration of correct invoice value before export--If restriction under s. 12(1) of the Foreign Exchange Regulation Act--Sea Customs Act, provisions of, when can be invoked.
HEADNOTE:
By a notification dated August 4. 1947 issued under s. 12(1) of the' Foreign Exchange Regulation. Act, 1947 and the, Foreign Exchange Regulation Rules, 1952, and amended thereunder, the Central Government prohibited the export to countries mentioned in its Schedule. of goods, except by post. unless a declaration supported by such evidence as may be prescribed is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been paid or would be paid within the prescribed period. In 1957, the respondents shipped goods after furnishing to the prescribed authority, namely, the Collector of Customs a declaration in the statutory form prescribed under the Foreign Exchange Regulation Rules, and the Collector of Customs passed the, goods for shipment. In 1965, the Dy. Collector of Customs issued a notice to the respondents calling upon them to show cause why a penalty under s. 167(8) of the Sea Customs Act, 1878, should not be imposed, on the basis that the respondents undervalued the goods deliberately, that they gave in the prescribed form false particulars supported by false evidence, that there was a failure to repatriate large amounts of foreign exchange contrary to the requirements of s. 12(2) and r. 5, that s. 12(1) of the Foreign Exchange Regulation Act and Rules required a declaration of the actual amount representing the full export value and a mere declaration of any value would not be sufficient compliance with the provisions, that under the circumstances by virtue of s. 23 A of the Foreign Exchange Regulation Act, the exportation constituted an offence. under s. 167(8) of the Sea Customs Act. the respondents thereupon. filed a writ petition contending that the declaration to the Collector of Customs was sufficient compliance with the statutory provisions and that the Collector having passed the consignments for shipment, had no further jurisdiction to take proceedings against them. A single Judge of the High Court dismissed the petitions, but on appeal, the Divisional Bench allowed the petitions. In 'appeal to this Court.
HELD: Per Bachawat and Hegde, JJ.. On the facts set out in the show cause notice the respondents could not be held to have contravened s. 12(1).
(1) The regulations contained in the Act are enacted in the economic and financial interest of the country.
Therefore, the rigour and sanctity of the regulations should be maintained but at the same time it should not be forgotten that s. 12(1) is a penal section, and in interpreting it. it is not competent to the Court to stretch its language in order to carry out the intention of the' Legislature. [752 E] 728 Tolaram Rehumal v. State of Bombay [1955] 1 S.C.R., 158, 164, followed;
Re. H.P.C. Production Ltd. [1962] Ch. Dn. 466, 473, ,red London & North Eastern Ry. Co. v. Beriman, [1946] A.C. 286, 295, applied.
(2) Neither s. 12(1) nor any other provision of the Act empowers the rule-making authority to add to the restrictions imposed by the section, and for finding out the restrictions imposed by the section one can only look at that section. The only restriction placed by s. 12(1) read with the notification dated August 4, 1947 is that no one should export any goods from this country without furnishing the declaration mentioned in s.12(1). The items of information called for in the prescribed form cannot be considered as restrictions imposed by s. 12(1). They are merely information called for the proper exercise of the powers under the Act. In fact many of them do not relate to the restrictions imposed if the section. [751 C--F] (3) So far as goods sold to the foreign buyer are concerned it is possible for the exporter to know the, exact export value, but that would not be the position when the goods are sent on consignment basis, and, in such a case the: exporter can give only an estimated value. If every declaration which does not state accurately the full export value of the goods exported is held to be, a contravention of s. 12(1) then all exports on consignment basis must be held to contravene the restriction imposed by s..12(1), but, the Legislature could not have intended that minor mistakes in giving the full export value should be punished under s. 23A. Therefore, the declarations given in the present case do satisfy the requirements of s. 12(1) though they did not correctly furnish all the information asked for in the form, and hence, there was no contravention of the section. [751 H--752 D] (4) The main purpose of s. 12(1) is to get a declaration from the exporter that he has either brought or will bring back the amount representing the full export value of the goods. The scheme of the Act is that so far as customs authorities are concerned all that they have to see is that no goods are exported without furnishing the declaration prescribed under s. 12(1). Once that stage is passed the rest of the matter is left in the hands of the Reserve Bank and the Director of Enforcement under ss. 12(5) and (6). [752 B, 754 F] (5) Before a case can be held to fall within the scope of ss. 23A and 167(8) of the Sea Customs Act, 1878, could be invoked, it must be shown that there has been a contravention of the restrictions imposed by s. 12(1); but the language of s. 12(1) does not permit the interpretation that the Legislature intended that the offences complained in these proceedings should be punishable under s. 23A. The contravention complained of in this case are really contraventions of s. 12(2) and r. 5 and they are punishable, the former, under s. 23 and the latter. under ss. 22 and 23.
[751 B--C, G] Per Sikri, J. dissenting. On the facts alleged by the Customs authorities no case for the issue of a writ to the authorities had been made out.
(1) The Act was enacted in the interests of national economy. Since a deliberate large. scale contravention of its provisions would have serious effects, it should be construed so as to make it workable. No subject can insist on an interpretation which will have the effect of sabotaging the national economy. [739 H--740 A] 729 (2) As s. 12(1) itself does not impose any restrictions and contemplates rules being made on: (a) evidence which is to support declaration; (b) authority to which the declaration is to be furnished; and (c) the manner of payment; the restrictions imposed by rules which are deferrable to the section must be treated as restrictions imposed by the section. [740 H] Wellingdale v. Norris [1909] 1 K.B. '57, 64, Wicks v. Director of Public Prosecution, [1947] 1 All E.R.
205, 206, R. v. Wicks, [1946] 2 All E.R. 529, 53t and Rathbone v. Bumlock, [1962] 2 All E.R. 257, applied.
Dr. Indramani Payarelal Gupta v. W.R. Nathu, [1963] 1 S.C.R. 721, 737, distinguished.
U.S.v. George R. Eaton, 36 L.Ed. 591 and Singer v. U.S. 89 L.Ed.258, 290. referred to.
(3) Even in a case where the amount has not been received, there must be declaration of some actual figure, which, according to the declaration represents the 'full export value' It may be an estimate if the goods have not been sold before the export, but a figure must be indicated. The requirement of supporting evidence and r. 5(2)(ii) requiring the statement of the invoice value in the declaration indicate that an actual figure has to be mentioned.
SeCtion 12(1) and the notification impose a conditional prohibition an on exporter which he can lift by a unilateral declaration. When such a power is conferred on an exporter by a statute good faith, on his part must be implied and is a condition prerequisite. Section 22 provides that the declare shall not give any information which he knows or has reasonable cause to believe to be false or not true Clerical mistakes and mistakes made bona fide even in respect of material particulars would not come within the mischief of the section. but a deliberate falsehood and deliberate evasion of the provisions of the section would be a contravention of s. 12(1) for otherwise the ambit of the section read with s. 23A would be narrowed to the point of extinction. An exporter and persons concerned in the export, could with impunity give a deliberately false declaration but in apparent compliance with s. 12(1) and deprive this country of foreign exchange. There is no distinction, between an exporter and the persons concerned in the export when no declaration under s. 12(1) is given at all and in a case where the exporter gives a deliberately false declaration for the purpose of the applicability of s. 167(8) of the Sea Customs Act. [1744 D--745 D] (4) Since the same contravention may attract penalties under the Sea Customs Act as well as the Foreign Exchange Act it will be incongruous to hold that the restrictions imposed by s. 12(1) are different for the two acts. [740 F--G] The Mayor of Portsmouth v. Charles Smith, 10 A.C. 364, 371, applied.
(5) Section 23A of the Foreign Exchange, Act deems the restrictions imposed under s. 12(1) to have been imposed under s, 19 of the Sea Customs Act, without prejudice to the provisions in s. 23 dealing with penalty and procedure for contravention of the provisions of s. 12 or any rule or direction or order made there under of Foreign Exchange Act and therefore, offenders who violate those restrictions could be proceed with both under the Foreign, Exchange Regulation Act as well as the Sea Customs Act.
It may be that action can be taken against an exporter under other sections of the Foreign Exchange ReguLation Act 730 or the Sea Customs Act, but that does not prevent action under s. 23A read with s. 12(1) with the aid of customs authorities, both against exporters and persons concerned in the prohibited export. [745 E--H]
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 45 to 49 of 1968.
Appeals from the judgment and order dated September 20, 1967 of the Madras High Court in Writ Appeals Nos.
247 to 251 of 1966.
C.K. Daphtary, Attorney-General, Niren De, Solicitor General, N.S. Bindra, Mohan Kumaramangalam, R.H.
Dhebar, A.S. Nambiar and' S.P. Nayar, for the appellants (in C.As. Nos. 45 and 47 to 49 of 1968 ).
Niren De, Solicitor-General, Mohan Kumaramangalam, N.S. Bindra, R.H. Dhebar, A.S. Nambiar and S.P. Nayar, for the appellants (in C.A. No. 46 of 1968).
A.K. Sen, Soli Sorabji, S.R. Vakil, B.D. Barucha, G.L. Sanghi, and S.K. Dholakia, for the respondents (in C.A. No. 45 of 1968).
N.A. Palkhivala, Soli Sorabji, D.N. Misra, S.R. Vakil and B.D. Barucha, for the respondent (in C.As. Nos. 46 and 49 of 1968).
G.L. Sanghi, S.R. Vakil and B.D. Barucha, for respondents '(in C.A. No. 47 of 1968) and their respondent (in C.A. No. 48 -of 1968).
N.A. Palkhivala, P.P. Ginewala, D.N. Mukherjee and Ajit Chaudhury, for interveners Nos. 1 to 4.
A.K. Sen, S.D. Khetri, Avadh Behari and R.N. Bajoria, for intervener No. 5.
N.A. Palkhivala and D.N. Gupta, for intervener No. 6.
M. C, Chagla and D.N. Gupta, for intervener No. 8.
N.A. Palkhivala, A.K. Basu, S.C. Mitter and 1. N.
Shroff, for intervener No. 7.
M.C. Setalvad and M.K. Banerjee, for intervener No. 9.
SIKRI, J. delivered a dissenting Opinion. The Judgment of BACHAWAT and HEGDE JJ. was delivered by HEGDE, J.
SiKri, J. These five appeals by certificate are directed against the judgment of the High Court of Madras whereby the High Court accepted the Writ Appeals against the judgment of Kailasam, J., in Writ Petitions Nos. 1592, 1593, 1594 and 1601 of 1966 and 3948 of 1965, and directed the issue of writs of prohi731 bition to the Union of India, the Collector of Customs, Madras, and the Deputy Collector of Customs, Visakhapatnam, appellants before us, prohibiting them from taking any action in pursuance of certain show-cause notices issued by the Deputy Collector Customs, Visakhapatnam. Common questions of law are involved in these appeals and it would suffice if I give facts in Writ Petition No. 1592 of 1966 out of which Civil Appeal No. 45 of 1968 arises.
The relevant facts in that writ petition, for appreciating the points raised before us, are as follows: On February 17, 1965, the Deputy Collector of Customs, Visakhapatnam, issued memorandum No. S/21/14/65 to M/s. Rai Bahadur Seth Shreeram Durgaprasad (Private) Ltd., Tumsar, and five others, hereinafter referred to as the Shippers.
In this memorandum, in brief, it was stated that the Shippers had entered into a formal contract on October 13, 1965, with M/s. Intercontinental Ores Supply Corporation, New York, for the shipment of 20,000 tons of Indian Manganese Ore of the grade of 43% Mn., from the port of Visakhapatnam at a price of $0.67 per unit of Manganese per dry long ton, f.o.b. Visakhapatnam/Bombay. The Shippers exported from the port of Visakhapatnam 3,300 tons of Indian Manganese per's.s. 'ALPHEM' under the cover of Shipping Bill No. 187 dated March 20, 1957, declaring therein that the export was being made in pursuance of the aforesaid contract. A G.R.I. form was attached. It was stated that a certain note-book which had been seized earlier in August 1963 disclosed that a sum of $25298.24 was received on April 21, 1957, from INOSCO, i.e., Intercontinental Ores Supply Corporation, New York, the consignee of the subject goods, the amount having been credited to an account in the name of Gangadhar Narsinghdas Agrawal with the Trust Co. of North America, 115, Broadway, New York. It was further alleged in the memorandum that the Shippers had derived financial benefits in respect of the subject export over and above those revealed to the Customs Authorities and/or other concerned authorities and the information about them was deliberately suppressed. It was further alleged that this constituted a contravention of s. 12(1) of the Foreign Exchange Regulation Act, 1947, read with Notification No. 12(17)-F. 1/47 dated August 4, 1947, as amended, issued there under and the Foreign Exchange Regulation Rules, 1952.
I may mention that by this notification the Central Government had prohibited "the export otherwise than by post of any goods either directly or indirectly to any place outside India other than any of the countries or territories in the Schedule annexed to this order unless a declaration supported by such evidence as may be prescribed is furnished by the exporter to the prescribed 732 authority that the amount representing the full export value of the goods has been or will within the prescribed period be paid in the prescribed manner." According to the Deputy Collector Customs, the goods have been thus exported in contravention of the restrictions and prohibitions imposed under s. 19 of the Sea Customs Act, 1878, read with s. 12(1) and the Notification No. 12( 17)-F.
1/47 dated August 4, 1947, issued there under, and s. 23A of the Foreign Exchange Regulation Act, 1947, which exportation constituted an offence liable to be punished under s. 167(8) of the Sea Customs Act, 1878. Accordingly, the parties concerned were called upon to explain the matter and show cause in writing to the Collector of Customs, Madras, why a penalty should not be imposed on them/ him under s. 167(8) of the Sea Customs Act, 1878.
It appears that a number of such memoranda were issued in respect of diverse shipments. Thereupon five petitions were filed in the High Court of Madras. In Writ Petition No. 1592 of 1966 it was alleged that 125 show-cause notices had been issued to the petitioners on various dates and it was prayed that a writ of prohibition or other appropriate writ, order or direction under Art. 226 of the Constitution of India prohibiting the respondents from taking any action in pursuance of the said show-cause memos, may be issued.
Various allegations were made but I need only mention the following allegations. It was submitted that the petitioners had complied with the statutory provisions inasmuch as a declaration in statutory form had been furnished to the prescribed authority. to wit, the Collector of Customs, and the Collector of Customs, having passed the consignments for shipment, had no further right or jurisdiction to take proceedings relating to the consignments in question. It was contended that if a declaration is found to be false, it did not mean that there was a breach of the provisions of s. 12(1).
In reply it was contended that what was required under s. 12(1) of the Foreign Exchange Regulation Act and the Rules was not any value but the actual amount representing the full export value, and a mere declaration of any value would not be sufficient compliance with the provisions of s. 12(1) of the Foreign Exchange Act.
The learned Single Judge, Kailasam, J., dismissed the petitions. Various points were urged but on the point addressed to us he held that the declaration to be given by the exporters meant not only that the value of the goods will be paid in the prescribed manner but also that the full export value of the goods given is the correct value.
733 I may mention that before the Division Bench the case of the Revenue was clarified in an affidavit and we may set out para 5 thereof:
"Since the Court has now directed the respondents to file a supplemental affidavit clarifying the stand taken by the department 1 state respectfully that the stand taken by the department both in the show-cause memo and here is that the essence of the offence committed by the appellants is that in the declaration required under section 12(1) of the Foreign Exchange Regulation Act, they have deliberately given false particulars supported by false evidence. By giving this fraudulent declaration, they have secured the export of their goods. This fraud vitiates the declaration itself, thereby making the export one in violation of the prohibition contained in Section 12(1) of the Foreign Exchange Regulation Act It is not necessary to set out the modus operandi adopted by the petitioners but 1 may mention that it was contended that a scheme was entered into prior to the actual export and the goods were undervalued deliberately and the department was induced to accept their declarations by means of false evidence and fraudulent suppression of facts. It is suggested that by this method a sum of Rs. 3,20,00,000 had been suppressed and there has been a failure to repatriate a corresponding amount of foreign exchange which had been earned surreptitiously. It was further stated that this scheme was adopted for all the shipments covered by the show-cause notices, and also for many other shipments in respect of which show-cause notices yet remain to be issued.
The Division Bench on appeal came to the conclusion that as the declarations were made under s. 12(1) and as they were scrutinised by the authorities it is not possible to contend that these goods were either exported or attempted be exported in violation of the prohibitions or restrictions imposed by law and are therefore, liable to be confiscated under s. 167(8)of the Sea Customs Act. The Division Bench further held that the alleged fraud on the part of the petitioners did not make any difference. According to the Division Bench "if the petitioners had misled the authorities by false representations or failed thereby to repatriate foreign exchange, by virtue of his obligation under s. 12(2), these are different offences for which separate and specific penalties can be imposed." The relevant statutory provisions at the time of exportation were as follows:
"The Foreign Exchange Regulation Act, 1947 s. 12(1) The Central Government may, by notification in 4 Sup. CI,/69-14 734 the Official Gazette, prohibit the taking or sending out by land, sea or air (hereinafter in this section referred to as export) of any goods or class of goods specified in the notification from India directly or indirectly to any place so specified unless a declaration supported by such evidence as may be prescribed or so specified, is furnished by the exporter to the prescribed authority that the amount representing the full export value of the goods has been, or will within the prescribed period be, paid in the prescribed manner.
(2) Where any export of goods has been made to which a notification under sub-section (1) applies, no person entitled to sell or procure the sale of the said goods shall, .except with the permission of the Reserve Bank, do or refrain from doing any act with intent to secure that (a) the sale of the goods is delayed to an extent which is unreasonable having regard to the ordinary course of trade, or (b) payment for the goods is made otherwise than in the prescribed manner or does not represent the full amount payable by the foreign buyer in respect of the goods, subject to such deductions, if any, as may be allowed by the Reserve Bank, or is delayed to such extent as aforesaid:
Provided that no proceedings in respect of any contravention of this sub-section shall be instituted unless the prescribed period has expired and payment for the goods representing the full amount as aforesaid has not been made in the prescribed manner.
(3) Where in relation to any such goods they said period has expired and the goods have not been sold and payment there for has not been made as aforesaid, the Reserve Bank may give to any person entitled to sell the goods or to procure the sale thereof, such directions as appear to it to be expedient for the purpose of securing the sale of the goods and payment therefor as aforesaid, and without prejudice to the generality of the foregoing provision may direct that the goods shall be assigned to the Central Government or to a person specified in the directions.
(4) Where any goods are assigned in accordance with sub-section (3) the Central Government shall pay to the person assigning them such sum in consideration of the net sum recovered by or on behalf. of the Central 735 Government in respect of the goods as may be determined by the Central Government.
(5) Where in relation to any such goods the value as stated in the invoice is less than the amount which in the opinion of the Reserve Bank represents the full export value of those goods, the Reserve Bank may issue an order requiring the person holding the shipping documents to retain possession thereof until such time as the exporter of the goods has made arrangements for the Reserve Bank or a person authorised by the Reserve Bank to receive on behalf of the exporter payment in the prescribed manner of an amount which represents in the opinion of the Reserve Bank the full export value of the goods.
(6) For the purpose of ensuring compliance with the provisions of this section and any order or directions made there under, the Reserve Bank may require any person making any export of goods to which a notification under subsection (1) applies to exhibit contracts with his foreign buyer or other evidence to show that the full amount payable by the said buyer in respect of the goods has been, or will within the prescribed period be, paid in the prescribed manner.
S. 22. No person shall when complying with any order or direction under section 19 or with any requirement under section 19B or when making any application or declaration to any authority or person for any purpose under this Act, give any information or make any statement which he knows or has reasonable cause to believe to be false, or not true, in any material particulars.
S. 23. (1) If any person contravenes the provisions of section 4, section 5, section 9 or sub-section (2) of section 12 or of any rule, direction or order made there under, he shall-(a) be liable to such penalty not exceeding three times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more, as may be adjudged by the Director of Enforcement in the manner hereinafter provided, or (b) upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with line, or with both.
736 (IA) Whoever contravenes(a) any of the provisions of this Act or of any rule, direction or order made there under, other than those referred to in sub-section (1) of this section and section 19, shall, upon conviction by a Court, be punishable with imprisonment for a term which may extend to two years, or with fine, or with both;
(b) any direction or order made under section 19 shall, upon conviction by a Court, be punishable with fine which may extend to two thousand rupees.
(1B) Any Court trying a contravention under subsection (1) or sub-section (IA) and the authority adjudging any contravention under clause (a) of sub-section (1) may, if it thinks fit, and in addition to any sentence or penalty which it may impose for such contravention, direct that any currency, security, gold or silver, or goods or any other money or property, in respect of which the contravention has taken place, shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any, or the person committing the contravention or any part thereof shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.
Explanation.--For the purposes of this sub-section, property in respect of which contravention has taken place shall include deposits in the bank, where the said property is converted into such deposits (2) Notwithstanding anything contained in section 32 of the Code of Criminal Procedure , 1898, it shall be lawful for any Magistrate of the first class, specially empowered in this behalf by the State Government, and for any Presidency Magistrate to pass a sentence of fine exceeding two thousand rupees on any person convicted of an offence punishable under this section.
(3) No Court shall take cognizance-(a) of any offence punishable under sub-section (1) except upon complaint in writing made by the Director of Enforcement, or (b) of any offence punishable under sub-section (1 A) of this section or under section 54 of the Indian Income-tax Act, 1922, as applied by section 19 of this Act, except upon complaint in writing made by the Director of Enforcement or any officer authorised in 737 this behalf by the Central Government or the Reserve Bank by a general or special order:
Provided that where any such offence is the contravention of any of the provisions of this Act or any rule, direction or order made there under which prohibits the doing of an act without permission, no such complaint shall be made unless the person accused of the offence has been given an opportunity of showing that he had such permission.
(4) Nothing in the first proviso to section 188 of the Code of Criminal Procedure, 1898, shall apply to any offence punishable under this section.
S. 23A. Without prejudice to any provisions of section 23 or to any other provision contained in this Act, the restrictions imposed by sub-sections (1) and (2) of section 8, sub-section (1) of section 12 and clause (a) of subsection (1 ) of section 13 shall be deemed to have been imposed under section 19 of the Sea Customs Act, 1879, and all 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 "may" were substituted." "The Sea Customs Act, 1878 167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively:
-----------------------------------------------------------Sections of this Act Offences to which Penalties offence has reference ------------------------------------------------------------
8. If any goods, the importation 18 Such goods shall be liable or exportation of which is for & to confiscation;
the time being prohibited or 19 and restricted by or under Chapter IV of this Act, be imported Any person concerned in into or exported from India any such offence shall be contrary to such prohibition or liable to a penalty not exceeding three times the value restriction; or of the goods, or not exceeding If any attempt be made so to one thousand rupees.
import or export any such goods; or If any such goods be found in any package produced to any officer of Customs as containing no such goods; or 738 -------------------------------------------------------Offences Penalties If any such goods, or any dutiable goods, be found either before or after landing or shipment to have been concealed in any manner on board of any vessel within the limits of any port in India; or If any goods, the exportation of which is prohibited or restricted as aforesaid, be brought to any wharf in order to be put on board of any vessel for exportation contrary to such prohibition or restriction.
"Foreign Exchange Regulation Rules, 1952.
3. Form of declaration.--(1) A declaration under section 12 of the Act shall be in one of the forms set out in the First Schedule as the Reserve Bank may by notification in the Gazette of India specify as appropriate to the requirements of a case.
(2) Declarations shall be executed in sets of such number as indicated on the forms.
4. Authority to whom declaration to be furnished.
(1) The original of the declaration shall be furnished to the Collector of Customs: provided that when export is by post, the original of the declaration shall be furnished to the postal authorities.
(2) Copies of the declaration shall be submitted to the authorities and in the manner specified on forms.
(3) The documents pertaining to every export passed by the Customs shall within 21 days from the date of the export, be submitted to the authorised dealer mentioned on the relevant declaration form, unless the Reserve Bank, in its discretion, authorises otherwise.
5. Evidence in support of declaration.
(1) The Reserve Bank, or subject to such directions, if any, as may be given by the Reserve Bank, the Collector of Customs or the postal authorities, may, to satisfy themselves of due compliance with section 12 of the Act, 379 require such evidence in support of the declaration as may satisfy them that the exporter is a person resident in India, or has a place of business in India.
(2) The Reserve Bank, or subject to such directions, if any, as may be given by the Reserve Bank, the Collector of Customs, or the Postal authorities may require any exporter to produce in support of the declaration such evidence as may be in his possession or power to satisfy them.
(ii) that the invoice value stated in the declaration the full value. of the goods;
and (iii) that the amount representing the full export value of the goods has been or will be paid to the exporter.
Explanation.--" The points which have emerged from the discussion at the Bar and which require determination may be formulated thus:
(1) What is the meaning of the expression "restrictions mean-posed by sub-section (1) of section 12" occurring in s. 23-A of the Exchange Act ? Can other sections of the Exchange Act be looked at for determining the ambit of the restrictions imposed by s. 12(1) ? Do restrictions imposed under the Rules made under the Exchange Act and relating to s. 12(1) come within the meaning of this expression ? (2) What is the true meaning of the words "a declaration supported by such evidence as may be prescribed .or so specified is furnished by the exporter to the prescribed authority that the amount representing the full export value of goods has been or will within the prescribed period be paid in the prescribed manner" '? Is it necessary that the declaration shall be made honestly or in good faith '? Should it disclose the true export value it a breach of the sub-section if a declaration is made honestly but happens to show incorrect export value to a small but not material extent ? Does not a deliberately false declaration contravene the provisions of s. 12(1) ? (3) If an action is a contravention of s. 12(1) and other provisions of the Exchange Act, e.g., ss. 22, 23, 12(2), 12(3) and 12(5), was it the intention that it should be treated as a contravention of s. 12(1)? Before dealing with point (1) mentioned above, a few preliminary observations may be made. I have to construe an Act which was enacted in the interest of the national economy. A deliberate large-scale contravention of its provisions would affect 740 the interests of every man, woman and child in the country.
Such an Act, 1 apprehend, should be construed so as to make it workable; it should, however, receive a fair construction, doing no violence to the language employed by the Legislature. It was said that if two constructions are possible the one that is in favour of the subject should be accepted. It is not necessary to pronounce on this proposition for I have come to the conclusion that there is one true construction of s. 12(1). But I should not be taken to be assenting to this proposition in so far as it is applicable to an enactment like the Exchange Act, for no subject has a right to sabotage the national economy.
Coming to the first pointed find that the following words of Lord Blackman express my views as to how the construction of s. 23A should be approached. He was dealing with a case where a single section of an Act of Parliament has been introduced into another Act. He said in The Mayor of Portsmouth v. Charles Smith (1):
"When a single section of an Act of Parliament is introduced into another Act, I think it must be read in the sense which it bore in the original Act from which it is taken, and that consequently it is perfectly legitimate to refer to all the rest of that Act in order to ascertain what the section meant, though those other sections are not incorporated in. the new Act. I do not mean that if there was in the original Act a section not incorporated, which came by the way of a proviso or exception on that which.
is incorporated, that should be referred to.
But all others, including the interpretation clause, if there be one, may be referred to." It seems to me that this is the correct way of looking at s. 23A of the Exchange Act for another reason. The restrictions imposed by s. 12(1) cannot be different for the purpose of the Exchange Act from that for the purposes of s. 167(8) of the Sea Customs Act, for the breach of s. 12(1) may also be punishable under the Exchange Act. In other words, the same contravention may attract penalties under the Sea Customs Act as well as the Exchange Act, and it would be incongruous to hold that the restrictions imposed by a section are different for different Acts.
Then am I entitled to take into account the restrictions imposed by the Rules made under s. 27 of the Exchange Act ? It seems to me that rules not deferrable to s. 12(1) cannot be taken into account, but any restrictions imposed by rules referrable to s. 12(1) must be treated as restrictions imposed by s. 12(1). Section 12(1) itself contemplates rules being made on three points. (1) 10 A.C. 364. 371 741 i.e. (1 ) the evidence which is to support the declaration, (2) the authority to which the declaration is to be furnished; and (3) manner of payment. It was said that the words "by section 12(1)" exclude the restrictions made under the Rules. But though in some contexts and scheme of an Act this proposition may be true, the general rule is as stated by Lord Alverstone. C.J., in Wellingdale v. Norris(1) as follows:
"If it be said that a regulation is not a provision of an Act, I am of opinion that Rex v. Walker(2) is an authority against that proposition.. I should certainly have been prepared to hold apart from authority that, where a statute enables an authority to make regulations a regulation made' under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall be or shall not be done." These observations were approved by the House of Lords in Wicks v. Director of Public Prosecution(3) thus:
"There is, of 'course, no doubt that, when a statute like the Emergency Powers (Defence) Act, 1939, enables an authority to make regulations, a regulation which is validly made under the Act, i.e., which is intra vires the regulation-making authority, should be regarded as though it were itself an enactment. As the Court of Criminal Appeal has pointed out in its judgment, that was decided by the Divisional Court in Willingdale v. Norris(1), and it appears to me that decision is perfectly correct. Consequently, the charge against the appellant here was in effect, that he had committed crimes defined or contained in the Act of Parliament." The Court of Criminal Appeals had stated in R.v. Wicks(4), as follows:
"The first observation which the court would make is that they are in complete agreement with the decision of the Divisional Court in Willingdale v. Norris(1) that where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done. It is, therefore, clear that the (1) [1909] 1 K.B. 57,64.
(2) [1875] L.R. 10Q.B. 355.
(3) [1947] 1 All E.R. 205. 206.
(4) [1946] 2 All E.R. 529, 531.
742 regulations must be read as though they were contained in the Act itself. They derive their efficacy solely from the Act and accordingly expire with the Act, but it may be that the legislature has provided that some restrictions or consequences shall remain effective notwithstanding the expiration of the Act." In a recent case, Rathbone v. Bundock(1), the Divisional Court following these cases held that regulation 89 of the Motor Vehicles (Construction and Use) Regulations, 1955, was for the purpose of obedience or disobedience a provision of the Road Traffic Acl, 1930.
In Dr. Indramani Pyarelal Gupta v. W. R. Nathu and Others(2) this Court was concerned, inter alia. with the interpretation of s. 3(1 ) of the Forward Contract (Regulation) Act, 1952, which used the words "such duties as may be assigned by or under this Act". Ayyangar, J., speaking for the majority, observed:
"Learned Counsel is undoubtedly right in his submission that a power conferred by a bye-law is not one conferred "by the Act" for in the context the expression "conferred by the Act" would mean "conferred expressly or by necessary implication by the Act itself ....
The words, "under the Act" would, in that context, signify what is not directly to be found in the statute itself but is conferred or imposed by virtue of powers enabling this to be done; in other words, by laws made by a subordinate law-making authority which is empowered to do so by the parent Act. This distinction is thus between what is directly done by the enactment and what is done indirectly by rule-making authorities which are vested with powers in that behalf by the Act. (vide Hubli Electricity Bombay Ltd v. Province of Bombay(2), and Narayanaswami Naidu v. Krishna Murthi(4)".
The observations of Subba Rao. J., as he then was. at p. 775~ relied upon by the appellants are these:
"I would, therefore, construe the words "by or under this Act, or as may be prescribed" as follows: "by this Act" applies to powers assigned proprio vigore by the provisions of the Act; "under this Act" applies to an assignment made in exercise of an express power conferred under the provisions of the Act; and "may be prescribed" takes in an assignment made in exercise of (1) [1962] 2 All E.R. 257. (2) [1963] 1 S.C.R. 721,737.
(3) 67 I.A. 57. 66. (4) I.L.R.
(1958) Mad. 513. 547.
743 a power conferred under a rule. This construction gives a natural meaning to the plain words used in the section and avoids stretching the language of a statutory provision to save an illegal bye-law." In my opinion that case does not assist me because the Court was construing the words "by or under the Act", and Ayyangar, J., specifically discussed the meaning of "by the Act" in the context.
Regarding the case of United States v. George R. Eaton,(1) relied on appellants' behalf, I find that the Supreme Court of the United States explained and distinguished that case in Singer v. United States ( 2 ) as follows:
"United States v. Eaton(1) turned on its special facts, as United States v. Grirnaud(3) emphasizes. It has not been construed to state a fixed principle that a regulation can never be a "law" for purposes of criminal prosecutions. It may or may not be, depending on the structure of the particular statute. The Eaton case involved a statute which levied a tax on oleomargarine and regulated in detail oleomargarine manufacturers. Section 5 of the statute provided for the keeping of such books and records as the Secretary of the Treasury might require. But it provided no penalty for noncompliance. Other sections, however, laid down other requirements for manufacturers and prescribed penalties for violations. Section 20 gave the Secretary the power to. make all needful regulations" for enforcing the Act. A regulation was. promulgated under s. 20 requiring wholesalers to keep a prescribed record. The prosecution was for noncompliance with that regulation. Section 18 imposed criminal penalties for failure to do any of the things "required by law." The Court held that the violation of the regulation promulgated under s. 20 was not an offence. It reasoned that since Congress had prescribed penalties for certain acts but not for the failure to keep books the omission could not be supplied by regulation. And Congress had not added criminal sanctions to the. rules promulgated under s. 20 of that Act." I would in this connection prefer to apply the English decisions referred to above, as s. 12(1) itself does not impose any restrictions and contemplates certain things to be prescribed.
(1) 36 L. Ed 591.
(2) 89 L. Ed 285, 290.
(3) 220 US 506, 518, 519:55 L. Ed 563, 568:31 S. Ct. 480.
744 Coming now to the construction of s. 12(1), it seems to me that what it requires is a declaration of some actual figure which according to the declarant represents 'the full export value'. Otherwise there is no point in requiring support of such evidence as may be prescribed. Further it is clear that some actual figure has to be mentioned when the exporter declares that he has received the amount representing the full export value. I apprehend that the same applies in the case where the amount has not yet been received. The rules make this clear. Rule 5(2)(ii) which requires the invoice value stated in the declaration to be the full export value of goods, is referrable to s. 12(1) of the Exchange Act and may be taken to indicate that an actual figure has to be mentioned. It may be an estimate' if the goods have not been sold before the export, but a figure must be indicated.
Coming to the crux of the problem, does s. 12(1) by itself require absolutely correct particulars ? It is said that s. 12(1) does not require it for s. 22 requires the exporter only to make a declaration "which he knows or has reasonable cause to be false or not true in any material particulars." How could it be that if s. 12(1) itself requires absolutely correct particulars, s. 22 limits the requirement ? It seems to me that there is force in this contention but only to a limited extent. Section 12(1) and the notification dated August 4, 1947, made under it, impose a conditional prohibition. The section confers a power on an exporter to lift the bar by a unilateral declaration.
When such a power is conferred on an exporter by a statute, good faith on his part must at least be implied and be a condition prerequisite. This construction is necessary in order to prevent abuse of the power given by the Act. (See Maxwell on Interpretation of Statutes, 11th Edition, p.
116). If the exporter makes a deliberately false declaration he contravenes s. 12(1) because he has not made the statutory declaration in good faith. It is not necessary to say that the declaration becomes nullity because the breach of good faith, a condition prerequisite, is itself a contravention of the conditional prohibition or restriction, within s. 167(8) of the Sea Customs Act read with s. 23A and s. 12(1) of the Exchange Act. Clerical mistakes and mistakes made bona fide even in respect of material particulars are not within the mischief of s.
12(1), but a deliberate falsehood and a deliberate evasion of the provisions of s. 12(1) come within s. 12(1).
Otherwise the ambit of s. 12(1), read with s. 23A, would be narrowed to the point of extinction. An exporter and persons concerned in the export could with impunity give a deliberately false declaration but in apparent compliance with s. 12(1), and deprive this country of foreign exchange.
I cannot give an interpretation which will make 745 a mockery of the section. But it is said that other sections of the Exchange Act will take care of such an exporter. He can be prosecuted under s. 23(1A) read with s.
22. He can be sentenced to imprisonment which may extend to two years. He can also be fined to an unlimited extent.
The Foreign Exchange lost can be retrieved by a court acting 1 under s. 23(B). This may be true that the exporter is liable as stated above. But what about persons concerned in the illegal export ? It is the persons concerned in the export which in most cases enables the exporter to successfully evade the provisions of the Exchange Act.
These persons are taken care of only under the Customs Act.
If they are covered by s. 167(8), there is no reason to exclude the exporter himself. It is not unusual to make persons liable both to penalties under the Sea Customs Act and the Exchange Act. It is indeed conceded that if no declaration is given under s. 12(1) and the goods are exported, the exporter and the persons concerned in the export would be liable to be proceeded both under s. 167(8) of the Sea Customs Act and the Exchange Control Act. I can draw no distinction between such an exporter and an exporter who gives a deliberately false declaration for the purpose of the applicability of s. 167(8) of the Sea Customs Act.
I am not impressed by the argument that the Foreign Exchange Act deals with the basic policy regarding foreign exchange and it was not the intention to punish offenders who violate foreign exchange restrictions under the Sea Customs Act. It is s. 23A of the Exchange Act which itself deems the restrictions imposed under s. 12(1) to have been imposed under s. 19 of the Sea Customs Act. Not only that.
The opening sentence of s. 23A makes it clear that this is without prejudice to s. 23 and to any other provisions in the Exchange Act. In other words, the provisions of s. 23 and other relevant sections are not affected or limited.
They will have their full operation.
The fact that the exporter may be proceeded under s. 12(2) I may assume that this is so for the purpose of this case) for non-payment of the full amount payable by the foreign buyer, or that the Reserve Bank can in the eventualities mentioned in s. 12(5) require the holding up of shipping documents or that the Reserve Bank by exercising powers under s. 12(6) secure contracts and other evidence to discover the full amount payable do not throw any light o
