Judgement

SUBBA RAO, J. (Contra) : I regret my inability to agree on the construction of S. 167 (81) of the Sea Customs Act, 1878. The facts have been stated by my learned brother, Wanchoo, J. and I need not restate them.

2. Clause (81) of S. 167 of the Sea Customs Act reads :

If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of , or is in any way concerned in carrying, removing depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid";............ The penalty clause therof reads : "such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years or to fine, or to both". This clause introduces a criminal offence. It is tribal by a magistrate. The person convicted is liable to imprisonment for a term not exceeding two years or to fine or to both. The rule of construction of such a clause creating a criminal offence is well settled. The following passage from the judgment of the Judicial Committee in The Gauntlet, (1872) 4CP 184 at p. may be quoted :

No doubt all penal statutes are to be construed strictly, that is to say, the Court must see that the thing charged as an offence is within the plain meaning of the words used, and must not strain the words on any nation that there has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have been intended to be included, and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language used, and the Court is not to find or make any doubt or ambiguity in the language of a penal statute where such doubt or ambiguity would clearly not be found or made in the same language in any other instrument".

The clause, therefore, must be construed strictly and it is not open to the Court to strain the language in order to read a casus omissus. The Court cannot fill up a lacuna : that is the province of the Legislature. The second rule of construction equally well settled is that a Court cannot construe a section of a statute with reference to that of another unless the latter is in pari materia with the former. It follows that decisions made on a provision of a different statute in India or elsewhere will be of no relevance unless the two statutes are in pari materia. Any deviation from this rule will destroy the fundamental principle of construction, namely the duty of a Court is to ascertain the expressed intention of the legislature. I am led to make these general remarks as an attempt was made by the learned counsel for the appellant to persuade us to interpret the words of the clause in the light of the decisions of the English courts on an analogous provision in an Act intended to prevent smuggling. It is not possible to state that the English and the Indian Acts are in pari materia, though their general purposes are the same and though there is some resemblance in the terminology used in them. The English decisions, therefore, must be kept aside in construing the relevant provisions of the Indian statue.

3. Now coming to the relevant clause, the following material ingredients constitute an offence thereunder : (1) a person must have a knowledge that there is a prohibition or restriction against doing any of t