Judgment

GROVER, J.:. - This is an appeal by certificate from a judgment of the Bombay High Court upholding the conviction and sentence of the appellant under Section 167 (81) of the Sea Customs Act, 1878, hereinafter called the Act and Section 120-B of the Indian Penal Code read with the aforesaid section and Section 5 of the Imports and Exports (Control) Act, 1947. The main point for determination is whether Section 187-A of the Act is unconstitutional on the ground that it is violative of Article 14 of the Constitution. The facts to the extent they are necessary may be set out.

2. The appellant carried on business in the name of M/s Jaihind Ex-Import Corporation as its sole proprietor. He also carried on business as a partner in another firm run under the name and style of Alran Optics (India) Corporation. The offices of the two firm were situate at New Charni Road, Bombay. According to the case of the prosecution the appellant with the object of defrauding the Government of customs duty payable on certain goods and with a view to evading prohibition imposed on the import of such goods was a party to criminal conspiracy, some of the other parties being M/s O & K Heydegger and M/s Winter Optics in West Germany. The conspiracy was stated to have been entered into for the purpose of acquiring possession of contraband goods such as spectacle frames, welding glasses etc. The import of spectacle frames was totally prohibited and the import of welding glasses was greatly restricted. It was alleged that in pursuance of the conspiracy the appellant imported three consingnments by three different ships; the first one arrived by S. S. Bialystock and the other two came on September 22, 1960 and March 5, l960 by two other ships S. S. Fraunfels and S. S. Laurensherk. Out of the four cases which arrived in the first consignment two cases contained contraband goods. As regards the other two consignments one case in each consignment contained goods the import of which was prohibited. The modus operandi was highly ingenious and interesting but we need not recapitulate the same.

3. The defence of the appellant was that it was owing to the mistake of shippers that the cases containing contraband goods arrived. It may be mentioned that no bill of entry was lodged by the appellant regarding the cases which contained contraband goods of the first consignment and the other consignment which were not got cleared. The learned Presidency Magistrate found the appellant guilty and sentenced him to six months rigorous imprisonment and a fine of Rs. 1000/- for each of the four charges directing the substantive sentences to run concurrently. The appellant filed an appeal to the High Court and the State preferred a petition for revision for enhancement of the sentence. The High Court dismissed both the appeals and the revision. The High Court further directed that the contraband goods should stand confiscated in favour of the, Government of India.

4. During the pendency of the appeal in this Court a petition was filed on behalf of the respondent (Cr. Misc. Petition No. 362/70). It was prayed therein that a constitutional point as to the vires of Section 187-A read with Section 167 (81) of the Act be allowed to be raised. Thereupon the Division Bench made an order that the appeal be placed before a larger bench. The question being one of constitutional validity of Section 187-A of the Act counsel for the appellant has addressed arguments before us with our permission on the aforesaid point. It has been contended inter alia that the offences of smuggling of goods and in particular, the acts with which the appellant has been charged could be dealt with by the customs authorities by proceeding under Section 167 (8) of the Act as well as in the alternative or in addition by instituting a prosecution in a criminal Court by filing a complaint under Section 187-A read with Section 167 (81) of the Act. The former can result only in the imposition of a fiscal penalty