M. Shaikh Dawood vs Collector of Central Excise, Madras

Ramachandra Iyer, J.—On 13-10-1957 the petitioner Shaik Dawood landed in Nagapattinam from Penang. The Customs officers searched

his luggage and seized 84 wrist watches valued at about Rs. 4200 which he had smuggled into the country without a permit. For this offence the

petitioner was prosecuted before the Sub Divisional Magistrate; Nagapattinam who, accepting this plea of guilty, convicted him u/s 5 read with

Section 3(2) of the Import and Export (Control) Act, 1947 and Import (Control) Order, 1955, and sentenced him to undergo rigorous

imprisonment for six weeks. The petitioner appealed to the Sessions Judge, East Tanjore. But that appeal was dismissed.

On 13-10-1957, that is to say, the very day on which the watches were seized from him, a notice was served on the petitioner by the

Superintendent of Central Excise, Nagappattinam, to show cause (1) why the 84 wrist watches should not be confiscated u/s 167(8), of the Sea

Customs Act read with Section 3(2) of the Import and Export (Control) Act, 1947, and (2) why a penalty should not also be imposed on him u/s

167(8) and (40) of the Sea Customs Act. To this the petitioner sent no reply. On 24-1-1958, while the petitioner was still in the Central Jail,

Timchirapalli, serving out the sentence which had been imposed upon him by the Sub Divisional Magistrate, the Collector of Central Excise,

Madras passed an order confiscating all the 84 wrist watches and imposing on him a penalty of Rs. 5000. The complaint of the petitioner is that the

order of the Collector of Central excise, confiscating the 84 wrist watches and also imposing a penalty of Its. 5000 is contrary to law and beyond

the jurisdiction of the Collector of Central Excise. He has therefore filed this petition for the issue of on appropriate writ to quash the order of the

Collector of Central Excise, Madras.

This petition came on for hearing before Bajagopala Aiyangar J. Before him the ground that the order of confiscation of the watches was illegal

was abandoned. It was, however, urged before him that u/s 167(8) of the Sea Customs Act the maximum penalty that could have been imposed

upon the petitioner was only Rs. 1000 and that the imposition of a penalty of Rs. 5000 was in contravention of the law.

In Collector of Customs, Madras Vs. A.H.A. Rahiman, , a Bench of this Court held,

On a proper construction of the third column of Section 167(8) of Act VIII of 1878, the amount of Rs. 1000 specified therein is not the maximum

limit of penalty which can be imposed by the customs authorities. The word ''or'' makes it perfectly clear that the customs authorities are given the

alternative and ft is left to them to impose a penalty, which satisfied either the first condition or the second.

The same question came up again in Venkatanarayana Iyer v. Collector of Central Excise, Madras, 1958 2 M.L.J. 115 : (AIR 1938 Mad 306),

where the same view was taken. So far as we can ascertain this view has been consistently followed in this court. But, in the cases, to which we

shall presently refer, the Supreme Court has made certain observations in view of which Rajagopala Aiyangar J. was inclined to think that the

decision in Collector of Customs, Madras Vs. A.H.A. Rahiman, requires reconsideration and so he referred this case to a Full Bench. That is how

the matter comes up before us.

We may mention here that the same question has been raised in W. P. Nos. 924, 928, 979 and 980 of 1959 and we have also heard the

learned counsel for the petitioners in these Petitions as to the proper interpretation of Section 167(8) of the Sea Customs Act. That section runs as

follows:

The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same

with reference to such offences respectively:

Offences. Section of this Act Penalties.

to which offence

has reference.

If any goods, the Importation or ex- 18 and 19 Such goods shall be liable to

portatton of which is for the time confiscation; airy-person concerned in

beingprohibited or restricted by or any such offence shall be liable to a

under Ch. IV ot this Act, be imported pen-alty not exceeding three times the

intoIndia contrary to such prohibition or value Of the goods, or not exceeding

restriction, or one thousand rupees.

It any attempt be made so to import or

export any such goods, or

If any such goods be found in any

package produced to any Officer or

Cus. toms as containing no such goods,

or

If any such goods, or any dutiable

goods be found either before or after

landing or shipment to have-been

concealed In any manner on board ot

any vessel within the limits of ""ny port

in India, or it any goods, the

exportation of which is prohibited or

restricted as aforesaid be brought to

any wharf in order to be put on board

of any vessel for exportation contrary

to such prohibition or restriction.

We shall immediately refer to the decisions of the Supreme Court on the strength of the observations in which the contention was put forward that

Rs. 1000 is the maximum penalty that can be imposed under any circumstances whatever for a contravention of the provisions of Section 167(8)

of the Sea Customs Act. The earliest Of these is Maqbool Hussain Vs. The State of Bombay, . The facts of that case, so far as they are at present

material, were as follows. On 6-11-1949 one Maqbool Hussain, a citizen of India, arrived in Santa Cruz airport from Jaddah. On landing he did

not declare that he had brought any gold with him, but on search it was found that he had brought in 107-2 tolas of gold in contravention of a

notification of the Government of India dated 25-8-1948.

The customs authorities confiscated the gold by an order dated 10-12-1949. The owner of the gold was however given the option to pay in lieu of

such confiscation a fine of Rs. 12000; That option was not exercised. In March 1950 a complaint was filed in the court of the Chief Presidency

Magistrate, Bombay against Maqbool Hussain charging him with having committed an offence u/s 8 of the Foreign Exchange Regulation Act of

1947, read with the notification dated 25-8-1948. Maqbool Hussain took the contention that the prosecution was barred in view of the fact that

the customs authorities had already passed an order confiscating the goods.

He filed a petition in the High Court of Bombay under Article 228 of the Constitution praying that the case be withdrawn from the file of the Chief

Presidency Magistrate to the High Court and that the High Court might either dispose of the case itself or determine the question of law which he

had raised. After various proceedings which are not of present interest, the High Court of Bombay dismissed the petition of Maqbool Hussain.

Maqbool Hussain then obtained special leave and appealed to the Supreme Court. In the course of a long judgment, Bhagwati J. observed,

Even though the customs officers are invested with the power of adjudging confiscation, increased rates of duty or penalty the highest penalty

which can be inflicted is Rs. 1000.

Now it is perfectly clear that the question what the maximum penalty is which can be imposed u/s 167(8) of the Sea Customs Act was never

before their Lordships at all. The question which the court had to decide was thus formulated. See pages 733 and 734 of the report (SCR): (at p.

327 of AIR):

The question that arises for our determination in this appeal is whether by reason of the proceedings taken by the Sea Customs authorities the

appellant could be said to have been prosecuted and punished for the same offence with which he was charged in the court of the Chief Presidency

Magistrate. Bombay"".

That was the only question before the court it was answered in the negative. The passage on page 742 (of SCR): (at p. 330 of AIR) on which

learned counsel for the petitioner placed so much reliance was only a casual observation,

The same view of this decision was taken in Messrs. Mohandas Issardas v. A. M. Sattanathan, ILR 1955 Bom 318. : (at p. 118 of AIR)

Chagla C. J. observed as follows:

Therefore, with respect, his observation is not on obiter dictum in the sense in which we have indicated. It was not an expression of opinion on a

point that arose before the Supreme Court. It is again with very great respect -- a casual observation made in considering the whole scheme of the

Sea Customs Act.

The next case referred to by counsel for the petitioner is reported in Babulal Amthalal Mehta Vs. The Collector of Customs, Calcutta, . The facts

there were as follows: On 4-5-1955 the Rummaging Inspector (Intelligence), Customs House, Calcutta, searched the residential room of one

Babulal Amthalal Mehta and in a wait almirah there discovered an old jacket wherein had been concealed 475 pieces of diamonds. The

explanation of Babulal that he had received them from Messrs. Ratilal Aniritlal not having been accepted the Collector of Customs issued a notice

to the petitioner and, after considering the entire material, he passed an order on 12-9-1955 the scope and effect of which are thus set out in the

judgment:

Since the petitioner had failed to discharge the onus u/s 178-A of the Sea Customs Act in respect of the diamonds seized on May 4, 1955, orders

had been passed confiscating the same u/s 167(8) and 167(39) of the Sea Customs Act and that the confiscation would be absolute in terms of the

provisions of Section 3(2) and (4) of the Imports and Experts (Control) Act, 1947. The reasons given in the above order were that the subsequent

statements were contrary to what had been stated in the first instance, that at the time of the raid, an attempt was made to hide the diamonds in a

suspicious manner and lastly that the petitioner was making statements which were in the nature of an afterthought, and not supported by_ facts.

On account of these and other reasons the Collector was of the opinion that the presumption u/s 178-A had not been rebutted. The order stated

that an appeal against it lay to the Central Board of Revenue within three months of the date of the despatch and also contained information as to

the court-fee, stamps etc, which would have to be affixed. Without availing himself of that remedy the petitioner has come up to this court by way

of an application for a writ under Article 32 of the Constitution.

The Court dismissed the petition. In the course of the judgment Govinda Menon J. referring to Section 167(8) of the Sea Customs Act,

observed:

It lays down that in addition to the confiscation of the goods, the persons concerned shall be liable to a penalty not exceeding three times'' the

value of the goods, or not exceeding one thou-sand rupees. This court has held that the minimum is the alternative; see Maqbool Hussain Vs. The

State of Bombay, .

It will be noticed that the scone of Section 167(8) of the Sea Customs Act was never before the Supreme Court at all in this case either. The only

question before the court was whether the provisions of Section 178-A offend against Art. 14 of the Constitution, and that question was answered

in the negative. The passage from the judgment of Govinda Menon J. which we have quoted and on which the learned counsel for the petitioner

naturally laid emphasis was only a passing reference to an earlier case in which too the question did not arise. Further it is apparent from an

examination of the earlier case in Maqbool Hussain Vs. The State of Bombay, , that this observation of Govinda Menon J, is not very accurate and

is possibly the result of a misapprehension.

The third case referred to by the learned counsel is reported in F.N. Roy Vs. Collector of Customs, Calcutta, . F. N. Roy, the petitioner in that

case, imported from Japan Zip chains of the value of Rs. 11000 and Odd. He paid for the goods, but before he could clear them, the Assistant

Collector of Customs for Appraisement, served on him a notice that he did not possess a valid import licence for the goods in question and

required him to show cause why the goods should not be Confiscated and action taken against him u/s 167(8) of the Sea Customs Act. Eventually

after considering the representations of the petitioner, the Collector of Customs, made ah order contiscating the goods and imposing a penalty of

Rs. 1000. The petitioner exhausted his departmental remedies and thereafter went up to the Supreme Court. The point taken before the Supreme

Court will appear from the following passage which we quote from the judgment of Sarcar J:--

The petitioner has now applied to this court under Article 32 of the Constitution challenging the validity of the order made against him: Learned

counsel for the petitioner did not challenge the decision"" of the Customs authorities that the goods were not covered by the notification of March

16, 1953. He conceded that he could not do so in this application. Nor did he challenge the Customs authorities'' power to confiscate the goods.

Learned counsel however challenged the order of Confiscation because it did not give the petitioner an option to pay in lieu of confiscation.

It will be noticed that in that case the amount of penalty imposed was only Rs. 1000 and so the question whether the appropriate customs officers

could impose a penalty in excess of Rs. 1000 did not arise for consideration at all. The only point the court had to decide was whether the

petitioner was entitled to the option of paying a fine in lieu of confiscation. It is no doubt true that on page 11158 (of SCR): (at p. 651 of AIR) the

learned fudge observed.

The section makes it clear that the maximum penalty that might be imposed under it is Rs. 1000. The discretion that the section gives must be

exercised within the limit so fixed. This is not an uncontrolled or unreasonable discretion. Furthermore, the discretion is vested in high Customs

officers and there are appeals from: their order.

From what we have just said it will have become apparent that the only question before the court was as regards the scope of Section 183 and

that the scope of Section 167 (8) was not before the court at all.

It will be convenient at this stage to refer to two other decisions of the Supreme Court. Of these one is reported in Leo Roy Frey Vs. The

Superintendent, District Jail, Amritsar and Another, . The relevant facts of that case were as follows: One Leo Roy Frey and another Thomas

Dana arrived in India on 11-6-1957. After staying in various places in India they left Delhi in a car for Amritsar on 22-6-1957. On 23-6-1957

they arrived at a Customs Station between India and Pakistan. The Customs officers required the petitioners to fill in the usual declaration forms.

Thereafter a very intensive search was carried out and then a pocket radio and a time-piece were recovered from Dana and a pistol with 48 live

cartridges was recovered from Frey.

Both of them were then placed under arrest. On 30-6-1957; they were further interrogated and their car was thoroughly searched. It was then

discovered that there was a "" secret chamber in that car containing Indian currency of the value of Rs. 8,50,000, and U. S. dollars ""amounting to

10000"". Notices were served on Frey and Dana, and, after hearing their representations, the Collector of Central Excise made an order

confiscating the currency notes and the motor car. The petitioner Dana was given an option to redeem the car on payment of Rs. 50,000.

A penalty of Rs. 25,00,000 was imposed on each of the petitioners u/s 167(8). Thereafter the petitioners were prosecuted before the Additional

District Magistrate, Amritsar u/s 23 read with Section 8 of the Foreign Exchange Regulation Act, 1947, and Section 167(81) of the Sea Customs

Act, 1878. The legality of the prosecution was thereupon questioned. It was contended on hehalf of the petitioners that in view of the provisions of

Article 20(2) of the Constitution, they could not be prosecuted and punished twice for the same offence,, once before the customs authorities and

again before the magistrate. This contention was overruled. The court observed on page 828 (of SCR): (at p; 121 of AIR),

It is true that the Collector of Customs has used the words ''punishment'' and ''conspiracy'' but those words were used in order to, bring out that

each of the two petitioners was guilty of the offence u/s 167(8) of the Sea Customs Act. The petitioners were not and could never be charged with

criminal conspiracy before the Collector of Customs and therefore Article 20(2) cannot be invoked. In this view of the matter it is not necessary

for as, on the present occasion to refer to the case of Maqbool Hussain Vs. The State of Bombay, , and to discuss whether the words used in

Article 20 do or do not contemplate only proceedings of the nature of criminal proceedings before a court of law or a judicial tribunal as ordinarily

understood. In our opinion, Article 20 has no application to the facts of the present case. No other points having been urged before us, these

applications must be dismissed.

On page 827 (of SCR); (at p 121 of AIR) the following observations however appear:

''''No question has been raised as to the maximum amount of penalty that can he imposed u/s 167(8) and we are not called upon to express any

opinion on that point.

This passage is significant for two reasons. It is clear that the decision of this court in Collector of Customs, Madras Vs. A.H.A. Rahiman, , was

cited before their Lordships. The other is that in spite of the penalty which was imposed was so large a sum as twenty five lakhs of rupees, counsel

did not consider it worthwhile raising the point that it contravened Section 107(8) of the Act.

The last decision cited before us was Thomas Dana Vs. The State of Punjab, . Here too the petitioners were the same individuals as in Leo

Roy Frey Vs. The Superintendent, District Jail, Amritsar and Another, The Tiestion now was whether Article 20(2) of the Constitution barred the

prosecution of the petitioners under the provisions of the Sea Customs Act and the Foreign Exchange Regulation Act a question which had been

previously left open but which as the court observed,

In view of the events that have happened since after the passing of the order of this court, dated October 31, 1957 it has now become necessary

to determine.

The Court finally held that the proceedings before the Sea Customs authorities even though they might result in the confiscation of the goods and

increased rate of duty or penalty did not constitute ''prosecution'' within the meaning of Article 20(2) of the Constitution. Subba Rao J. dissented

and expressed this opinion :

I have, therefore, no hesitation to hold that the Customs Officers in so far as they are adjudicating upon the offences mentioned u/s 167 of the Act

are functioning as judicial tribunals. If the other view, viz, that an authority is not a judicial tribunal be accepted, it will lead to an anomalous

position, which could not have been contemplated by the Legislature. To illustrate, a Customs Collector may impose a penalty of Rs. 25,00,000,

as in this case or his finding that a person has committed an offence u/s 167(8) of the Act, and the accused can be prosecuted again for the same

offence before a magistrate. On the other hand, if the prosecution is first laid before a magistrate for an offence u/s 167(8) and he is convicted and

sentenced to a fine of a few rupees, he cannot be prosecuted and punished again before a magistrate.

The point here is this. Notwithstanding incidental or passing expressions of opinion that had been made on three earlier occasions, the Supreme

Court expressly refrained from saying anything on the matter in Leo Roy Frey Vs. The Superintendent, District Jail, Amritsar and Another, and in

Thomas Dana Vs. The State of Punjab, Subba Rao J. definitely expressed the opinion that a penalty of Rs. 25,00,000, would be permissible under

the statute.

It will be seen that the passages on which learned counsel for the petitioner laid stress do not form the ratio decidendi to any of the decisions.

Nor do they appear to be even considered expressions of opinion. The same view was taken by a Judge of the Calcutta High Court in Palriwala

Brothers Ltd. Vs. Collector of Customs, Calcutta and Others, where the learned Judge says,

But those cases did not however in my view go into the question of maximum limit and actually decide the point.

It is occasionally helpful to remind oneself of basic principles and we therefore make no apology for quoting the following passages from Salmond

on Jurisprudence. On pages 223 and 224 of the 11th Edn. the following passages appear:

''''A precedent, therefore, is a judicial decision which contains in itself, a principle. The underlying principle which thus forms its authoritative

element is often termed the ratio decidendi. The concrete decision is binding between the parties to it, but it is the abstract ratio decide (sic) which

alone has the force of law as regards the world at large. The only use of authorities or decided cases says Sir George Jessel, ''is the establishment

of some principle, which the Judge can follow out in deciding the case before him.'' ''The only thing'' says the same distinguished judge in another

case, ''in a Judge''s decision binding as an authority upon a subsequent judge is the principle upon which the case was decided."" .....The only

judicial principles which are authoritative are those which are thus relevant in their subject matter and limited in their scope. All others, at the best,

are of merely persuasive efficacy. They are not true rationes decidendi, and are distinguished from them under the name of dicta or obiter dicta,

things said by the way. The preprogativc of judges is not to make law by formulating and declaring it -- this pertains to the legislature -- but to

make law by applying it. Judicial declaration, unaccompanied by judicial application, is not of binding authority.

The footnote is also of interest:

The weight to be given to obiter dicta depends upon the circumstances. Sir Carleton Allen''s conclusion is that ''if the eminence of the tribunal, the

consensus of judicial opinion, and the degree of deliberation all combine to lend a special weight and solemnity to dicta, then their authority is for all

practical purposes indistinguishable from than of rationes decidendi"".

In Flower v. Ebbw Vale Steel Iron and Coal Co., 1934 2 K.B. 132, the following passage appears at page 154:

It is of course perfectly familiar doctrine that obiter dicta, though they may have great weight as such, are not conclusive authority. Obiter dicta in

this context mean what the words literally signify -- namely, statements, by the way. If a Judge thinks it desirable to give his opinion on some point

which is not necessary for the decision of the case, that of course has not the binding weight of the decision of the case and the reasons for the

decision.

Wo should remark in passing that this passage has been incorporated in Stroud''s Judicial Dictionary under the heading Obiter Dicta.

It has been explained that the observations made by the Supreme Court in none of the first three cases which we have cited constitute the rea

sons for the decisions of any of those cases; nor are they deliberate pronouncements on the matter in question. They are passing observations,

incidental and casual in their nature.

The position therefore is that the Supreme Court has riot given any clear guidance or expressed any considered opinion on the question and the

matter remains to be examined more fully.

In order properly to produce the meaning which the learned counsel for the petitioner invited us to put on the words appearing in column 3

against item 8 in Section 167 of the Sea Customs Act, it is necessary that the words should run as follows:

Any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one

thousand rupees, whichever is less.

But, the words ''whichever Is less'' are not in the statute. A construction which would require fresh words to be introduced into a statute is not

to be readily adopted. There are numerous statutes which specify punishments in the alternative for defined offences. Of these statutes the most

familiar is the Indian Penal Code. Section 802 of that Code enacts that a person guilty of murder shall be punished with death or imprisonment for

life. Section 304 provides that whoever commits culpable homicide shall be punished with transportation for life or imprisonment of either

description for a term which may extend to ten years. Section 313 provides that whoever commits the offence defined in Section 312 shall be

punished with transportation for life or with imprisonment of either description which amounts to ten years. Similarly Section 329 I. P. C. Similar

alternative provisions are to be found in various other sections of the Code.

Now, this Code has been on the statute book for close on one hundred years and thousands of cases under these sections must have been

dealt with during this period. Yet, so far as we are aware, it has not even been suggested that since the punishment provided in these sections is in

the alternative only the lesser penalty can be imposed by the courts. Imprisonment for life is a less severe form of punishment than death. But, it has

not been suggested that because Section 302 I. P. C. enacts that a person guilty of murder shall be punished with death or imprisonment for life he

cannot be sentenced to death and can be sentenced only to imprisonment for life.:

Similarly, imprisonment for ten years is less severe than transportation for life; yet it has never been held that where the imposition of these penalties

in the alternative is provided for transportation for life cannot be imposed. The long history of the Penal Code is also sufficient to dispose of the

further contention that since Section 167 of the Sea Customs Act is penal in its nature, courts must on principle adopt the construction more

favourable to the person sought to be proceeded against.

The Penal Code is not the only statute which provides for alternative punishments for the same offence. Another statute which can be called

up, from memory and without research is the Indian Navy (Discipline) Act, 1934. Section 4 of that Act provides that for the offences specified

therein the offender may be punished with ''death or such other punishment as is hereinafter provided.'' Section 5 provides that if the offence

referred to therein is committed from cowardice the offender Shall suffer ''death or such other punishment as is hereinafter mentioned''. Similar

alternative provisions appear in various other sections which follow.

If the contention of learned counsel for the petitioner were right then in every one of these cases only the lesser penalty can be imposed. That

surely could not have been the intention of the legislature, for in that ease, by prescribing a higher alternative penalty the legislature would be

stultifying itself.

There is yet another difficulty in the way of the contentions of the learned counsel for the petitioner. On the basis that Rs. 1000 is the maximum

penalty that can be imposed on a person concerned in smuggling goods that maximum would be reached in the case of goods of the value of Rs.

833-1/3 since three times this figure is Rs. 1000. So if a person smuggles goods of the value of say three lakhs or even three crores of rupees no

penalty can be imposed on him in excess of that which can be imposed upon a person who is concerned in the smuggling of goods of the value of

only Rs. 333-1/3. Ordinarily in fixing punishments and penalties the legislature attempts to make the penalty appropriate to the offence. The more

serious the offence the greater is the penalty provided. The milder the contravention the milder the penalty. An argument which would make serious

inroads into so well established and salutary a principle cannot be accepted except where the language of the statute is plain.

At no time have legislatures been inclined to be indulgent to smugglers, and, the penalties provided in Section 167 show that the punishments

arc intended to be deterrent. Item 4, as it originally stood, provided for the confiscation of the vessel concerned where it ""has been within the limits

of any port in India, with cargo on board"" should it be afterwards found in any other port, bay, river, creek or arm of the sea in India, light or in

ballast if the Master be unable to give a due account of the customs-poll where such vessel lawfully discharged her cargo. Item 3-A provides that

the vessel shall be liable to be confiscated if any part of the cargo of a vessel is thrown overboard or is staved Or destroyed so as to prevent its

seizure by any officer of customs while the vessel is within Indian customs waters or while the vessel having been summoned while in India watery

fails to do so and chase is given.

It is perfectly clear that when the legislature prescribed that the penalty shall not exceed three times the value of the goods it was making a

deliberate effort to make the penalty proportionate to the value of the goods involved. To fix the ceiling at Rs. 1000 would be to defeat this effort

of the legislature.

Two other contentions put forward by learned counsel remain to be considered. Section 167 of the Sea Customs Act is cased upon Section

186 of the Customs Laws Consolidation Act of the British Parliament (Ch. 36, 39, and 40 Vict. 1876) which ends as follows:

''''Every person .....shall for each such offence forfeit either treble the value of the goods, including the duty payable thereon, or one hundred

pounds at the election of the Commissioners of Customs.

It was argued that the English statute expressly conferred the power to choose on the Commissioners and that no corresponding words are to be

found in the Indian statute. The omission, it was said, must have had a purpose and it was further said that that purpose could only have been to

make the lesser penalty the maximum penalty.

We are unable to agree. When a statute provides for alternative punishments, a choice between the two punishments must naturally be made.

But, we do not suppose that it was ever intended that the choice of the punishment should be left to the person who has been found guilty of having

transgressed the law. That option must naturally vest in the person administering the law. That goes without saying. The freedom of choice would

even without the words in question have remained with the Commissioners. The omission of corresponding words in the Indian statute is therefore

of no consequence: Besides, though the Indian Act is based on the English Act the drafting is not on parallel lines at all.

Yet another argument was based on Section 23 of the Foreign Exchange Regulation Act, 1947. Sub-section (1) of that section was amended

in 1957 and then it was provided that a person contravening certain other: sections of the Act shall be liable ""to such penalty not exceeding three

times the value of the foreign exchange in respect of which the contravention has taken place, or five thousand rupees, whichever is more."" The

argument was that when the legislature thought fit to add the words ''whichever is more'' in Section 23 of the Foreign Exchange Regulation Act,

1947 and omitted to do so in Section 167 of the Sea Customs Act one must presume that the intention of the legislature was that only the lesser

penalty should be provided.

Now, on this we would make only two observations. One is that the amendment made in Section 23 did not consist merely of the addition of the

words ""whichever is more"". The whole of that subsection was re-written to provide for various Other matters also. Besides, however legitimate it

may be to interpret the mind of the legislature by looking into the words of a statute it has subsequently enacted, we have not heard that the

intention of the legislature as expressed in a particular statute can be gathered by its inactivity in relation to that statute.

It seems to us that the view taken by this Court in Collector of Customs, Madras Vs. A.H.A. Rahiman, , and M.S. Venkitanarayana Iyer and

Others Vs. Collector of Central Excise, , is right and that view cannot be regarded as having been overruled or disapproved of by the Supreme

Court.

In the result, this writ petition fails and is dismissed with costs. Advocate''s fee Rs. 250/-.