Back
1967 Supreme(AP) 191
Andhra Pradesh High Court
Judges : SHARFUDDIN AHMED, VENKATESWARA RAO
In Re: P.Bapanaiah - Appellant
Versus
States - Respondent
Decided On : 11-24-67
The Gold Control Rules, 1962, were validly made by the Central Government under Section 3 (1) of the Defence of India Act, 1962, as they were necessary to secure the defence of India and the maintenance of supplies and services essential to the life of the community.
Headnote:
CUSTOMS ACT - GOLD CONTROL RULES - VALIDITY - PROSECUTION - DOUBLE JEOPARDY - GENERAL CLAUSES ACT, SECTION 26 - Held, (1) The Gold Control Rules, including Rule 126-P (2) which renders possession of any quantity of gold in contravention of any of the provisions of Part XII-A (Gold Control Rules, 1962) punishable with imprisonment and fine are perfectly with in the competence of the Central Government as, according to him, they are made with the avowed object of securing one or more of the purposes specified in Section 3 (1) of the Defence of India Act and that the validity of the rules cannot, in any view, be questioned in view of the fact that the Legislature, in enacting sub-section (2) of Section 3, has declared its intention that rules made under any one or more of the clauses of that sub-section would necessarily be for securing the purposes mentioned in sub-clause (1) of Section 3 and as item 33 listed under sub-section (2) of S. 3 provides for framing rules for controlling possession, use, disposal etc, of bullion which includes primary gold, gold ornaments and gold in any of its forms. (2) The control or possession etc, of gold even by private individuals may not directly promote the defence of India or the other objects enumerated in Section 3 (1) of the Act but it does certainly and substantially help the government in securing some at least of those objects as was held by their Lordships of the Bombay High Court, in Amichand v. C. B. Kotak, AIR 1966 Bom 70. (3) The validity of the Gold Control Rules is not open to question, even if it should be found that they do not serve to achieve any one of the purposes mentioned in sub-section (1) of Section 3 of the Act, as the Legislature, by enacting Sub-section (2), has declared its intention that rules made under any one or more of the clauses of that sub-section would necessarily be for securing the purposes mentioned in sub-clause (1) of S. 3; and the gold Control Rules are framed for controlling possession etc. , of gold as provided in item 33 of sub-section (2) (4) The rule-making power conferred by sub-section (2) is subject to the same limitations as are imposed by sub-section (1) of Section 3 as the clauses thereunder are only illustrative of the matters pertaining to which rules could be framed. The Legislature simply sought to give guidance to the Central Government, by means of this sub-section, on the question as to what it can do for securing the purposes mentioned in sub-section (1 ). Section 3 (2) would neither add to nor take away the powers conferred by Section 3 (1 ). The mere fact that rules are framed in relation to one or other of the subjects mentioned in sub-section (2) does not by itself render them valid if they are not referable to the powers conferred on the Control Government buy sub-section (1 ). (5) The petitioner is not entitled to invoke the aid of article 21 of the Constitution even if the impugned rules should deprive him of his personal liberty otherwise than in accordance with procedure established by law as the President, in exercise of his powers under Article 359 (1) of the Constitution of India, declared by a gazette notification dt. 3-11-62 that the right of any person to move any Court for the enforcement of the rights conferred by Article 21 and Art. 22 of the Constitution shall remain suspended for the period during which the Proclamation of Emergency issued under clause (1) of Art. 352 thereof on the 26th October, 1962, is in force, if such person has been deprived of any such rights under the Defence of India Ordinance, 1962 or any rule or order made thereunder. (6) There is really no conflict between the provisions of Rule 126-P (2) and Chapter XXII of the Criminal procedure Code relating to summary trials. (7) The sentence, if any, to be awarded to the petitioner would be one under the provisions of Rule 126-P (2) and not Chapter XXII of the Code of Criminal Procedure and so, Section 262 (2) of the Code limiting the term of imprisonment to three months does not in any way conflict with what is contained in Rule 126-P (2) of the Gold Control Rules. (8) The provisions of Rule 126-P (2) read with Rule 126p (4) have the effect of taking away or abridging the petitioners right not to be sentenced to a term exceeding three months as provided in Section 262 (2) Cr. P. C. and are consequently repugnant to Article 13 (2) of the Constitution as it was already seen that the limit of sentence prescribed by Section 262 (2), Cr. P. C. is applicable only to offences enumerated in Section 260 of the Code and not to offences under other Acts which are triable summarily by virtue of the provisions contained in those Acts. (9) The prosecution of the petitioner under the provisions of Section 135 of the Customs Act and Rule 126-P (2) of the Defence of India Rules offends Article 20 (2) of the Constitution inasmuch as the Deputy Collector, Central Excise, Guntur had already imposed a penalty of Rs. 5,000/- on the petitioner besides confiscating the gold seized from him pursuant to the provisions of Rule 126-L (16) (aa) and Rule 126-M (20) (aa) of the Gold Control Rules. (10) The petitioner can be considered to have been prosecuted and punished by the Deputy Collector, Central Excise when he imposed on him a penalty of Rs. 5,000/ -. (11) The petitioners prosecution both under the Sea Customs Act and the Gold Control Rules is contrary to Section 26 of the General Clauses Act.
Fact of the Case:
The petitioner was found in possession of four gold slabs with foreign markings. He was charged under Section 135 of the Customs Act and Rule 126-P (2) of the Defence of India Rules, 1962 (Part XII-A Gold Control). The petitioner challenged the validity of the Gold Control Rules, arguing that they were in excess of the rule-making powers of the Central Government and that they infringed his rights under Articles 20 (2), 21, and 14 of the Constitution of India. He also argued that the prosecution was barred by Section 403, Cr. P. C. and Section 26 of the General Clauses Act.
Finding of the Court:
The court held that the Gold Control Rules were validly made by the Central Government under Section 3 (1) of the Defence of India Act, 1962, as they were necessary to secure the defence of India and the maintenance of supplies and services essential to the life of the community. The court also held that the prosecution of the petitioner under Rule 126-P (2) did not violate his rights under Articles 20 (2), 21, and 14 of the Constitution of India. The court further held that the prosecution was not barred by Section 403, Cr. P. C. or Section 26 of the General Clauses Act.
Issues: 1. Whether the Gold Control Rules were validly made by the Central Government under Section 3 (1) of the Defence of India Act, 1962? 2. Whether the prosecution of the petitioner under Rule 126-P (2) violated his rights under Articles 20 (2), 21, and 14 of the Constitution of India? 3. Whether the prosecution was barred by Section 403, Cr. P. C. or Section 26 of the General Clauses Act?
Ratio Decidendi: 1. The Gold Control Rules were validly made by the Central Government under Section 3 (1) of the Defence of India Act, 1962, as they were necessary to secure the defence of India and the maintenance of supplies and services essential to the life of the community. 2. The prosecution of the petitioner under Rule 126-P (2) did not violate his rights under Articles 20 (2), 21, and 14 of the Constitution of India. 3. The prosecution was not barred by Section 403, Cr. P. C. or Section 26 of the General Clauses Act.
Final Decision: The petition was dismissed.
( 1 ) THIS criminal revision petition, which arises out of a prosecution under Section 135 of the Customs Act and Rule 126-P (2) of the Defence of India Rules, 1962 (Part XII-A Gold Control) has been referred to the Bench by our learned brother, Mohammed Mirza, J. , for decision "in view of the important question of law raised" in the case.
( 2 ) THE factors of the case may briefly be set out here. On receipt of information that Pabbati Bapnaaiah, the petitioner herein, would be leaving Hyderabad for Kothagudem by bus on 3-2-65, with contraband gold, the Deputy Superintendent, Customs and Central Excise, Hyderabad, with some members of his staff, lay in wait at the Gowliguda Bus Dept. in Hyderabad. The petitioner arrived there at 9 A. M. with a holdall in his hand. On a search of his person and belongings, it was found that he concealed in a pillow, four gold slabs with foreign markings "johnson Mathey 999-O London 10 tolas". Those slabs were seized and further investigation revealed that no permit was issued to the petitioner, who is a licenced dealer in gold, to import them from abroad. After necessary enquiry, the Deputy Collector, Central Excise, Guntur, imposed a penalty of Rs. 5,000/- on the petitioner under Rule 126-L (16) (aa) of the same Rules, on 24-7-65. The Assistant Collector, Central Excise, thereafter preferred a complaint against the petitioner before the 4th City Magistrate, hyderabad for contravening the provisions of section 135 of the Customs Act, 1962 and Rule 126-P (2) of the Defence of India Rules, 1962 (Par XII-A Gold Control ). A preliminary objection was raised before the learned Magistrate that the prosecution is untenable in view of the mandatory provisions of Article 20 (2) of the Constitution of India and Section 403, CR. P. C. as the Deputy Collector of Central Excise, Guntur, had already imposed a penalty of Rs. 5000/- on the petitioner besides confiscating the gold by his order dated 24-7-1965. It was further urged before him that the prosecution is barred by clause 26 of the General Clauses Act also. The learned Magistrate overruled those objections whereupon the petitioner carried the matter in revision to the Principal Sessions Judge, hyderabad at Secunderabad. In addition to the pleas raised before the Magistrate, it was urged before the learned Sessions Judge that the prosecution of the petitioner under Rule 126-P (20 of the Defence of India Rules infringes the right guaranteed to him under Article 21 of the Constitution and is consequently bad. The learned Sessions Judge dismissed the petition negativing all the contentions urged for the petitioner and hence this petition.
( 3 ) IT may be stated at the outset that besides the pleas urged in the Courts below, the learned counsel for the petitioner has raised before us yet another contention that Rules 126-A to 126-Z contained in Part-XII-A of the Defence of India Rules, which will hereinafter be referred as Gold Control Rules, are in express of the rule-making powers of the Central government and are therefore liable to be struck down.
( 4 ) WE will first take up for consideration the learned counsels argument that the Central government exceeded the rule-making power conferred on it by sub-section (1) of S. 3 of the Defence of India Act in promulgating the gold Control Rules. It will be useful to extract here the relevant provisions of S. 3 of the Act. 3. Power to make rules: " (1) The Central Government may, by notification in the official gazette, make such rules as appear to it necessary or expedient for securing the defence of India and civil defence, the public safety, the maintenance of public order or the efficient conduct of military operations, or for maintaining supplies and services essential to the life of the community. (2) Without prejudice to the generality of the powers conferred by sub-section (1), the rules may provide for, and may empower any authority to make orders providing for, all or any of the
