Judgment

SARKAR, J. : These two matters have been heard together as they raise a common question. One of these matters is a petition under Art. 32 of the Constitution and the other, an appeal from a judgment of the High Court at Bombay.

2. The petitioner and the appellant were found by the Customs authorities, in proceedings under the Sea Customs Act, 1878, to have imported goods in breach of S. 19 of that Act. The petitioner had without authority imported gold of the value of Rs. 25,000 and the appellant, steel pipes of the value of Rs. 1,28,182. The Customs authorities by independent orders, imposed a penalty of Rs. 5,000 on the petitioner and of Rs. 25,630 on the appellant for these offences, under item, 8 of the schedule to S. 167 of the Act. The Customs authorities further confiscated the petitioner s gold under the same provision. There was no order of confiscation of the steel pipes for reasons to which it is unnecessary to refer.

3. The appeal is against an order the result of which was to direct realisation of the penalty imposed on the appellant, by execution of a distress warrant. The petition challenges the validity of the order imposing the pecuniary penalty. Neither the petitioner nor the appellant, however, questions the decisions of the Customs authorities that they had been guilty of breach of S. 19 or that penalties could be imposed on them under item 8 in S. 167. The petitioner does not, further, challenge the order confiscating the gold.

4. The only contention of the petitioner and the appellant is that the orders of the Customs authorities are invalid as they impose penalties in excess of Rs. 1,000. They contend that the maximum penalty that can be imposed under item 8 in S. 167 is Rs. 1,000. This contention is based on two grounds. First it is said that, it has been so held by this Court. Then it is said that in any case, on a proper construction, item 8 in S. 167 does not permit the imposition of a penalty in excess of Rs. 1,000.

5. First, as to the decisions of this Court, we were referred to three. The earliest is Maqbool Hussain v. State of Bombay, 1953 S C R 730. That was a case in which the question was whether a person on whom a penalty of confiscation of goods had been imposed under item 8 in S. 167, could later be prosecuted on the same facts for an offence under S. 23 of the Foreign Exchange Regulation Act, 1947, in view of the provisions of Art. 20 (2) of the Constitution against, what has been called, double jeopardy. It was held that Art. 20 (2) was no bar to the prosecution under the Foreign Exchange Regulation Act for, the authority under the Sea Customs Act imposing the penalty under item 8 in S. 167 was not a judicial tribunal and the proceeding resulting in the imposition of the penalty of confiscation was, therefore, not a prosecution. No question arose in that case as to the maximum penalty that could be imposed under item 8 in S. 167. While discussing whether a Customs authority exercising the power to order confiscation and levy a penalty under S. 167 formed a judicial tribunal, this Court observed at p. 742 (of SCR).

"Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty which can be inflicted is Rs. 1,000".

6. It is quite obvious that this observation was made in a different context and was not intended to decide that the provision did not permit the imposition of a higher penalty, as to which no question had then arisen. It is clear that if the highest penalty which the Custom officers had the power to impose was in excess of Rs. 1,000 but subject to another limit, it would not have followed that they were judicial tribunals. The judgment of this Court was not based on the amount of the maximum penalty which the Customs authorities could impose. It seems rather to have been assumed that the maximum penalty was Rs. 1,000 for the question about maximum penalty was neither argued, nor discussed in the j