LexTUKARAM G. GAOKAR versus R. N. SHUKLA & ORS.
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TUKARAM G. GAOKAR v. R. N. SHUKLA & ORS. March 8, 1968 [M. HIDAYATULLAH, C.J., R. S. BACHAWAT, C. A. VAIDIALINGAM, K, S. HEGDE AND A. N. GR.OVER, JJ.) The Sea Customs A.ct, 1962, ... Ill, 112, 135-PrDHCutlon Hfo11 Magistrate for smuggling gold under •· 135-Colkctor of Custonv also iJsuing notice under ss. 111and112 to sholv cause why contrdband gn/d should not he confiscated and penlllly iniposed-Jssue of notice whether constitutes co11te11ipt of cri111inal court-1vhe1her contravenes Art, 20(3) ·Constitution of India, 1950. Jn Septcml>~r 1966 the Customs authorities seized certain contrabanJ gol<l from the possession of the appellant. Thereafter the appellant along with certain other persons was charged befor~ a Magistrate for oJfcnccs in cQnncction with the smuggling of gold under s. 120 B of the Indian Penal Code read with s. 135 of the Sea Customs Act, r. 131-11 of the Defence of India Ruros and s. 8 of the Foreign Exchange Regulation Act. Before the commencement of the trial the Assistant Collector of Customs issued a notice to the appellant to show cause why the gold should not he confiscated under s. J 11 of the Sea Customs Act and why a penahv .,.hould not be imposed on him under s. 112 of the same Act. Thereupon tbe appellant under Art. 226 of the Constitution a<ked the High Court for a writ of prohibition restraining proceedings for imposition of P'~naJty .on him in pursuance of the aforesaid notice. The contention ~·as th~t 1hc thrcatenc<l proceedings (i) amounled to contempt ot the MagistnH..: hcforc whom the trial was imminent and (ii) were in violation of Ar:. 20(3) inasmuch as he \•louJd be compelled to go into the witness ho\: to rebut the evidence of an accomplice witness. The High Court rejccll!<l 1hcsc contentions, but granted a certificate to appeal to this Court. HELD: (i) Identical issues arise in proceedin~ for impMition of penalty under s. I 12(b) of the Sea Customs Act, 1962 and in a !,rial for an offence punishable under s. 135(b) of the sam·~ Act. Jf a pCrson incurs liability under s. 111 he may be proceeded against under s. 112lhl and also under s. 135(b). Similar issues arise in the trial for contraven· tion of r. 131 B of the Defence of India Rules and s. 8 of the Foreign Exchange Regulation Act. The customs officers will have to enquire inlo these issues though the same issues will later be tried by the criminal court. Seclion 127 expressly provides that the award of a penalty under s. J 12 is not bar to th-~ infliction of punishment under s. 135. Th~ offender may be punished under s. 135 without prejudice to any oth~r action that may he taken under the Act, [424 E--HJ The Customs Officers were acting hona fide and discharging th~ir statutory duties under ss. 111and112:. The power of adjudicating penahr and confiscation under those sections is vested in them alone. The cri- minal court cannot make this adjudication. The issue of the show..cal1s~ notice and proceedings the~undcr were authorised by the Act and v;cre 110t calculated to obstruct the cou'rsc of justice in any Court. There "'as no justification for holding that the proceedings amounted lo contempt of Court. 1425 Cl A B c D E F G H A B c D E ' H TUKARAM "· R. N. SHUKLA (Bachawat, J.) 42 3 Reg v. Gmy, [19j)O] 2 Q.B. 36, Arthur Reginald Perera v. 7"/ie King, [1951) A.C. 482, Saihnl K11m.ar Gupta v. B. K. Sen, [1961] 3 S.C.R. 460 :mJ S. S. Rny v. Stcl,le of Omsa, A.l.R. 1960 S.C. 190, referred to. ' (ii) The customs officers have a discretion to stay the ptocecdio~ under ss. 111 and 112 during the pendency of the trial in the criminal court. In 1he exercise of their disc'rction they had refused to stay the proceedings, It was not shown that th~ir action Was 111ala fide or arbitrary. The Court would not issue a 11uiudanuu to control this' exercise of their di,crction, [425 Hl ~ dii) The proceedings unde'r ss. 111 and 112 could not be said to be in violation of Art. 20(3) 06' ~he Constitution, The possibility of h:.aving to en1cr tho witness-box to rebut the evidence of an accomplice y;as no! such a compulsion as would attract the, provisions of proceeding_, from an- other person or authority. If an accused voluntarily gives evidence. in his· defence he is not being compelled to be a witness against himself. [The Court however obs~-ed that~ different considerations might arise if the 01ppellant was summoned by the clistoms authorities under s.
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