Judgment

RAY, J.: - This is an appeal by special leave from the judgment of the High Court at Patna challenging first the authority of the Excise Inspectors as Officers of Customs, namely, public servants and secondly their power to arrest Nazir Mian and seize 2 bags of cloves from his possession under Sections 173 and 178 respectively of the Sea Customs Act, 1878.

2. The facts giving rise to this appeal are as follows. On 13 December, 1961, Inspectors Uma Shankar and Bisuddha Nand Jha and Constable Bishan Singh, all belonging to the Central Excise Department were on checking patrol duty on 830 Down Barauni passenger train proceeding from Barharwa to Pakur which are Railway Stations in Santhal Parganas in Bihar. The appellant Nazir Mian was travelling by Barauni passeneger train. When the train stopped at Pakur the excise staff found Nazir Mian in the latrine of one of the compartments of the train with two bags of cloves weighing about 2 manuds 10 seers. The door of the latrine was closed. Inspector Uma Shankar pushed the door when it was opened from inside. Uma Shankar disclosed his identity and asked if duty had been paid for the cloves. Nazir Mian answered in the negative. Inspector Uma Shankar thereupon seized the bags and arrested Nazir Main. While this was being done, the train started. Shortly after the train had started, it stopped at a level crossing in consequence of one of the persons of the excise staff pulling the alarm chain. The excise staff got down with Nazir Mian. The two bags of cloves were also brought down. Certain persons collected on the spot. Nazir Mian is alleged to have been rescued by other appellants and the bags of cloves were taken away. In the scuffle that ensued, one of the Inspectors received simple injuries and the other a grievous injury.

3. The three appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah and two other persons Jhaman Mian and Raghunath Prasad Yadav were all charged under Sections 147, 149, 333 and 379 of the Indian Penal Code for forming an unlawful assembly in assaulting Inspectors Uma Shankar and B. N. Jha and in rescuing accused Nazir Mian from their lawful custody and in removing two bags of seized cloves from their possession. The accused persons with the exception of Raghunath Prasad Yadav were further charged under Section 332 of the Indian Penal Code for voluntarily causing hurt to Uma Shankar a public servant in the discharge of his public duties. The accused with the exception of Nazir Mian were charged under Section 225 of the Indian Penal Code for intentionally offering resistance to the lawful apprehension of accused Nazir Mian. Nazir Mian was also charged under Section 7 of the Land Customs Act, 1924 for contravention of Section 5 of the said Act and also under Section 167, Item 81 of the Sea Customs Act, 1878 for contravention of Section 19 of the said Act and also under Section 5 of the Imports and Exports (Control) Act, 1947 for contravention of Section 3 (1) of the Imports Control Order, 1955.

4. At the trial before the Assistant Sessions Judge, Dumka in Santhal Parganas, Raghunath Prasad Yadav was acquitted of all the charges and the appellants Nazir Mian, Ram Kirpal Bhagat and Ganga Dayal Shah along with Jhaman Mian were all convicted under Secs. 147 and 332 of the Indian Penal Code . Jhaman Mian, Ram Kirpal Bhagat and Ganga Dayal Shah were also convicted under Sections 223 and 333 of the Indian Penal Code. Ram Kirpal Bhagat and Nazir Mian were also convicted under Section 379 of the Penal Code. The said four accused including the three appellants were sentenced to several terms of imprisonment and the said sentences were ordered to run concurrently.

5. The Assistant Sessions Judge, Dumka, however, acquitted the appellant Nazir Mian of the charges under the Land Customs Act, the Sea Customs Act, 1878 and the Imports and Exports (Control) Act. The Assistant Sessions Judge, Dumka held that Section 6 of the Imports and Exports (Control Act, 1947 raised a b