Messrs Basakha Singh and Company vs The Collector of Central Excise And Land Customs, New Delhi and Another

D.K. Mahajan, J.—This petition under Article 226 of the Constitution of India raises a very interesting question as will presently appear.

The petitioners Messrs Basakha Singh and Company Private Limited, New Delhi, are engaged in the business of importing arms and ammunition and also are retail dealers in the same. They applied for and obtained licence No. E. 687505/57/EI/CCI/D dated the 3rd April, 1957, for the import of fire arms to the extent of Rs. 11,815/- as specified in serial Nos. 312-316-IV of the Import Trade Control Police-hereinafter referred to as the Import Policy. Under this licence the petitioners imported barrels and actions in equal numbers to the extent of � 83 from Spain. This consignment passed out of the customs without any trouble. Thereafter under the same licence, with regard to the balance amount, the petitioners placed another order for the import of actions and barrels of Belguim guns. When this consignment arrived at the port, the customs authorities withheld the same and issued notice to the petitioners to the effect that the consignment was not covered by the licence. The petitioners were required to show cause within 15 days why the goods be not confiscated and action taken against the petitioners u/s 167(8) of the Sea Customs Act, 1878. the petitioners replied to the show cause notice and contended that what they had imported was not prohibited by any item in the Import Policy for the period January to June, 1956. This contention was not accepted by the Collector of Customs and on appeal by the Central Board of Revenue, with the result that it was finally decided to confiscate the imported goods. A revision petition to the Central Government also met with no success. The petitioners, who were dissatisfied with these orders, have come up to this Court under Article 226 of the Constitution of India.

The contention before this Court is the same as was raised before the Collector of Customs and before examining the same it will be proper to set out the relevant part of the Import Policy schedule. For the purposes of this case, I am only concerned with item No. 314 and clause (d) in remarks column. Section II, Part IV. For the sake of convenience it is reproduced below:

"314. Subject to the exemptions specified in Item No. 80(3) of the first schedule to the Indian Tariff Act, 1984. Remarks.(d) Licences for Serial Nos. 312, 313, 314, 315, 316 of Part IV will not be valid for import of 12 bore shot guns-single or double barrel, ejector or non-ejector types. Single and double barrel and ejector or non-ejector type shot guns having chamber of 16 bore but having barrels of 12 bore and which can be converted into 12 bore shot guns will not be allowed to be imported

(a) Barrels, whether single or double for fire arms, including gas and air guns, gas and rifles, and gas and air pistols, not otherwise specified.

(b) Mainsprings and magazine springs for fire arms including gas guns, gas rifles and gas pistols.

(c) Gun stocks and breech blocks.

(d) Revolver cylinders.

(e) Actions (including skeleton and waster) breech blots and their heads, cooking pieces, and locks for muzzle loading arms.

(f) Machines for making loading or closing cartridge for rifled arms.

(g) Machines for capping cartridges for rifled arms.

While interpreting the aforesaid item, the Central Board of Revenue in a very brief order have observed as follows:

The import of 12 bore gun was completely banned during the material period and if the spire parts thereof were to be allowed to be imported it would amount to the negation of the Government''s avowed policy. The appeal is accordingly rejected.

Barring the item already quoted above, no other item or material has been placed before me from which the avowed policy of the Government can be gathered. It is no doubt true that in clause (d), the import of 12 bore guns is totally banned, but item No. 314 (a) and (e) permits the import of "barrells" and "actions", respectively, and there is no embargo placed on the import 12 bore barrels or ''''actions" for the same. If the avowed policy of the Government was that even "actions" and barrels of 12 bare guns were banned, it would have been so stated either in the remarks column or in the body of item 314, just as has been done in the case of springs used for air guns in item 312 and regarding accessories and parts of arms specified in item 313.

The larger question whether the import of barrels and "actions" could be said to be import of 12 bore guns and thus barred as per entry in the remarks column opposite item 314 now requires determination. What the aforesaid entry bars is the import of 12 bore guns or the import of 16 bore guns having 12 bore barrels. Under the Indian Arms Act, 1878, section 4 defines ''arms'' as follows:-

''Arms'' includes fire-arms, bayonets, swords, daggers, spears, spearheads and bows and arrows, also cannon and parts of arms, and machinery for manufacturing arms.

A part of an arm, therefore, would be a fire-arm. The licence which was granted to the petitioners was for the import of fire-arms covered by items 312 to 316 in the import policy. The short question, therefore, that falls for determination is whether the imported items are permitted and fall within the aforesaid items.

After considering the matter at considerable length and examining it in all its various aspects, I am clearly of the view that they do fall within the item 314. Those who know or have used the fire-arms, particularly a shot gun, are aware that a barrel by itself is not a gun nor is the butt without the "action". As a matter of fact, to make a complete gun, three things are needed, though possibly with two the gun may be fired but not effectively. Those three parts are the barrel, the butt with the "action", and the fore end A gun can be fired even if the fore-end is missing though it may not be effectively used in the sense that to reload it, it will take considerable time, and in certain events it may also not be safe to fire it without the fore-end, but a gun cannot be used as gun either without the butt and the "action" or without the barrel. Even when the petitioners import equal quantity of "actions" and barrels they cannot be termed as guns. They will only be guns when to the "actions" butt is supplied and the fore-end is manufactured. I have mentioned this matter in considerable detail for the simple reason that it was sought to be contended by Mr. Shanker that what the petitioners are doing is to defeat the avowed policy of the Government, it being that a 12 bore gun is not to be imported. Mr. Shanker, however had to concede that the import of 12 bore barrels is not specifically ruled out and that is why he has to have recourse to the entry in the remarks column and on its basis argued that by necessary implication the import of 12 bore barrels or "actions" for 12 bore guns is totally prohibited. I am, however, unable to accept this contention. The entry in the remarks column prohibits import of 12 bore guns or of guns which can be easily converted into 12 bore guns. It does not bar the import of parts for such guns. If the intention of the Government was, as is contended for by Mr. Shanker, to prohibit the import of any parts of a 12 bore gun. it was for the Government to make it clear in the Import policy. If the policy was to ban import of 12 bore barrels and 12 bore "actions" it would have been specifically stated in item 314. One can only gather the policy from the phraseology used in the Import policy and it is clear that, what was sought to be prohibited was the import of a complete 12 bore gun and not the parts of a 12 bore gun It may be a case of a lacuna or it may be a case where the genuine requirement of customers for whom the import of different parts of guns was allowed is being abused, but that is a matter which the Government can settle and make clear by change in the relevant provisions of the Import Policy. From the items as they stand, at present, it cannot be said, on any reasonable construction that the petitioners were not well within their right to import 12 bore barrels or "actions". The customs authorities, the Central Board of Revenue and the Central Government have definitely misconstrued the relevant item.

Mr. Shankar sought to contend that the question whether a certain imported commodity falls within a certain item is a matter solely tor the decision by the Customs authorities and their decision, however, erroneous, is not open to review by this Court. This contention cannot be accepted in view of the decision of the Supreme Court in A.V. Venkateswar an v. Ram Chand Sobhraj Wadhwani A.I.R 1961 S.C. 1606. A similar question arose for determination in that case and it was held by the Bombay High Court that the Customs authorities had wrongly interpreted the item as barring the import of the goods in that case and the decision of the Customs authorities was quashed. An appeal by the Customs authorities to the Supreme Court also failed. That decision clearly negatives the contention of the learned counsel.

For the reasons given above, this petition is allowed, the orders of the Central Government, the Board of Revenue and the Customs Collector confiscating the goods imported from Belguim is quashed. However, I will make no order as to costs.

Petition allowed.