Judgment

HEGDE, J.- In this appeal by certificate two questions of law arise namely (l) whether on the facts of this case the mare "Jury Maid" can be considered as a "Pet animal" within the meaning of that expression in the notification issued by the Government of India, Ministry of Commerce and Industries, Import Trade Control Public Notice No. 1-I.T.C.(PN)/61 dated 2nd January 1961 and (2) whether the expression "prohibition" contained in Sec. 111 (d) of the Customs Act 1962 (which will hereinafter be referred to as the Act) includes prohibition of imports coupled with a power to permit importation under certain conditions.

2. The facts relevant for the purpose of deciding the points in issue are not many. They may now be stated. The appellant, Sheikh Mohd. Omer, as found by the High Court was a dealer in horses especially in racing horses. He was breeding horses out of mares owned by him. He owned two stallions by name "Pieta" and "Rontgen". He claimed to have had a considerable reputation as race horse owner and for racing with horses bred by himself. He appears to have won several prizes awarded for horse races. In September, 1964, the appellant went to Europe. While he was in Switzerland he received a letter from M/s. British Bloodstock Agency Ltd., London informing him that one of its clients was interested in obtaining a foal by stallion "Pieta" from the said client s Brood Mare. After some correspondence it was agreed that the Glasgow Stud Farm would lease a brown English mare to the appellant which would be shipped to India and would be kept there pending her producing two foals by the appellant s breeding race horse "Pieta" after which the mare will be returned to England with one foal. The appellant returned to Calcutta on November 7, 1964 by air. At the Dum Dum Airport he gave a declaration showing that his seven unaccompanied baggages will follow him by sea or by air. Eventually, "Jury Maid" was shipped to Calcutta by S. S. "Chinkoa" which reached Calcutta port on December 25, 1964. When the appellant tried to take delivery of the same, the Customs authorities objected on the ground that the mare had been imported in contravention of the provisions of the Imports and Exports (Control) Act, 1947. After due enquiry the Customs authorities confiscated the mare. At this stage, it may be mentioned that when the mare came to India, it was pregnant. After its arrival in India it gave birth to a foal and thereafter it died. The foal given birth by it is alive.

3. The first question that arises for decision is whether by importing the mare in question the appellant contravened the provisions of the Act.

4. Section 111 (d) of the Act provides:

The following goods brought from a place outside India shall be liable to confiscation:-...........

(d) any goods which are imported or attempted to be imported or are brought within the Indian customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force."

5. "Prohibited goods" is defined in Sec. 2 (33) of the Act. That definition reads:

" "Prohibited goods" means any goods the import or export of which is subject to any prohibition under this Act or any other law for the time being in force but does not include any such goods in respect of which the conditions subject to which the goods are permitted to be imported or exported have been complied with ".

6. From this definition, it is clear that "prohibited goods" under the Act includes also such goods as may be imported by complying with the prescribed conditions. It is admitted that the import of horses or mares is not prohibited under the Act. Therefore the question is whether such import is prohibited "by any other law for the time being in force."

7. Section 3 (1) of the Imports and Exports (Control) Act, 1947 provides:

"Powers to prohibit or restrict imports and exports :-

(1) The Central Government may, by order published in the Official Gazette, m