ASSISTANT COLLECTOR OF CUSTOMS (PREVENTIVE) BOMBAY versus BABU MIYA SHEIKH IMAM AND ORS. ETC.

Citation: [1983] 3 S.C.R. 500 · Decided: 28-07-1983 · Supreme Court of India · Bench: P.N. BHAGWATI · Disposal: Appeal(s) allowed

Judgment (excerpt)

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ASSISTANT COLLECTOR OF 
CUSTOMS (PREVENTIVE) BOMBAY 
v. 
BABU MJY A SHEIKH IMAM AND ORS. ETC. 
July 28, 1983 
[P. N. BHAGWATI AND R. B. MISRA, JJ.J 
Customs Act, 1962-Section 135(/) (a) (ii,-Scope of. 
Section 135(1) (a) (ii) of the Customs Act, 1962 provides that if any 
person "is in relation to any goods in any way knowingly concerned in any 
fraudulent evasion or attempt at evasion of any duty chargeable thereon or of 
an.v p:olzibition for the titnc being imposed under. any other law for the time 
~ei~g in force with respect to such, goods'', he shall be punishable. 
In the reasonable belief that the respondents were smuggJing silver out 
of the country, the Custon1s officials apprehended the· resporldents at · about 
111idnight while they were going in a fishing vessel off the coast of Bombay and 
found 194 ingots of silver in the vessel. They were prosecuted for offences 
under section !'20-B Indian Penal Code, section 135(1) (a) (ii) of the Customs 
Act, 1962, section 5 of the Imports and Exports (Control) Act, 1947 and 
section 23(1A) of the Foreign Exchange RegulatiOns Act, 1973. While the 
Magistrate found them guilty of all the offences the High Court on appeal set 
as.ide the conviction under the. Customs Act and Foreign Exchange Regulations 
Act. The appellant accepted the acquittal under section 23(1A) of the Foreign 
Exchange Regulations Act but impugned the judgment of the High Court in 
so far as it set aside the conviction under section 135 (1) (a) (ii) of the 
Customs Act. 
It was contended on.behalf of the prosecution that the accused were 
knowingly concerned with fraudulent evasion or attempt at evasion of the 
prohibition imposed under the Export Trade Control Order of 1968 on the 
e:1tport of silver without licence and that therefore they were guilty of an off~nce 
under the Cu.$ toms Act. 
The respondt:lnts, ~n the other hand, contended that the words ''with 
respect to such goods" occurring in the section, refer to goods on which duty 
was chargeable as contemplated in the first part of the secti.on and since no 
duty was chargeable on export of silver it did not fall within the words "with 
respect to such goods" and therefore- there was no fraudulent evasion or 
attempt at evasion of tI{e prohibition on export of silver without a licence 
iniposed under the Export Trade Control Order, 1968 issued under section 3 
of the Imports and Exports (Control) Act; 1947, which was punishable under 
~h~ Cust9m~ AC?t. 
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ASSTT. COLLECTOR v. BABU MIYA 
SOI 
Allowing the appeal, 
HELD : Where goods are chargeable with duty and any person is· 
knowjngly concerned in any fraudulent evasion or atten1pt at evasi?n of such 
duty, the-case wOuld.fall within the first.part of the section, but where a pro-
hibition is imposed with respect to any goods under the Customs Act, 1962 or 
any other law for the time being in force, then, irrcspeCtive- of whether duty is 
chafgeable on such goods or not, any person who is knowingly concerned in 
any fraudulent evasion or attempt at evasion of such )'fOhibition, would be 
covered by the second or third part as the case may be .. [ 506 BJ 
In the instant c~se the EXport Trade Control Order, 1968 issued ~nder 
section 3 of the Imports and Exports. (Control) Aci, 1947,. prohibited the 
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export of silver without a licence. On the facts established by the prosecu. 
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tion the accused were knowingly ·concerned in fraudulent evasion or attempt 
at evasion of suCh prohibition on export of silver and their case was therefore 
covered by the third part of section 135(1) (a) (ii).' 
The provision enacted in section 135(1) (a) (ii) is divisible into three 
parts : the first part postulates that goods in respect of which the offence is 
committed must be goods chargeable with duty; the second and third_ parts are 
not concerned with the question whether any duty is chargeable on the goods 
or nQt. They speak only of frauduient evasion or attempt at evasion of any 
prohibition for the time being imposed under the Custom~ Act or any other 
law in forc.c in respect of any goods. What they contemplate is that in respect 
of goods in question there must be a prohibition imposed under the Customs 
Act or any other law for the time being in force irrespective of whether duty 
is chargeable on such goods or not and the accused must be concerned in any 
fraudulent evasion or attempt at evasion of such prohibition. The prohibition 
fr"audulently eva

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