VENUGOPALAN v. UNNIKUTTY PANICKER — 1977 DIGILAW 180 (KER)

Judgment :- 1. The complainant, Assistant Collector, Central Excise, Integrated Divisional Office, Kozhikode is the appellant. 2. On 26-3-1971 the then Superintendent of Central Excise, Special Customs Preventive Circle, Calicut, examined as Pw. 3 in this case, searched House No. 6/364 of Mayanad Amsom, Karathur Desom, alleged to be on receipt of information that smuggled goods were concealed in that house and on the reasonable belief that smuggled, contraband goods were kept there. The building was owned and was in the occupation of respondents 1 and 2. Pw. 3 was accompanied by Pws.1 and 5. Two independent witnesses examined as Pws. 2 and 4 were also present. As a result of search, 21 gunny bundles containing Nylon yarn which appeared to be made in Japan, the estimated value of which was Rs. 56,000/-were found in the house and they were seized. A mahazar was prepared which was attested by Pws 2 and 4. Respondents 1 and 2 on being questioned by Pw. 3 in the presence of Pw. 5 gave statements which are marked as Exts. P2 and P3 respectively. Fw. 5 also recorded the statement of the third respondent marked as Ext. P4 The respondents did not produce documents to show how they came to be in possession of the articles. After due enquiries and after obtaining sanction from the Additional Collector of Customs, a complaint was filed against the three respondents for offence punishable under S.135 of the Customs Act, 1962.8 witnesses were examined in the case. Pws.1 to 5 are connected with the search and seizure of the articles. Pw. 6, who is the Executive Officer of the Kunnamangalam Panchayat was examined to prove the ownership of the house. Pw. 7 is a Chemical Examiner, who certified that the articles seized were synthetic yarn Pw. 8 who is the Asst. Collector of Customs was examined to prove the sanction issued for prosecuting the respondents. The Judicial Magistrate, Second Class, Kunnamangalam, who tried the case held that on the evidence available in the case, it was not possible to say whether the prosecution entertained reasonable belief that the articles seized were smuggled goods. The court after referring to the decisions in Markos Aranoutakis v. Collector of Customs (1972 KLT. 231 and Assistant Collector of Customs v. Pratap Rap Sait (1972 KLT. The court after referring to the decisions in Markos Aranoutakis v. Collector of Customs (1972 KLT. 231 and Assistant Collector of Customs v. Pratap Rap Sait (1972 KLT. 307) relating to burden of proof held that the prosecution failed to discharge the onus of proving the guilt of the respondents and acquitted them. 3. The main contention put forward on behalf of the appellant is that the trial court did not apply the correct principles of law in relation to the burden of proof and overlooked the provision in S.123(1) of the Customs Act. 4. S.123 (1) reads: "(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be? (a) in a case where such seizure is made from the possession of any person- (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the foods were seized, claims to be the owner thereof, also, on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized." 5. S.123 (1) corresponds in material particulars to S 178-A(1) of the Sea Customs Act, quoted below: "178-A (1). Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized." The scope and application of S.178-A (1) are discussed in Babulal v. Collector of Customs (AIR 1957 SC 877). The Supreme Court observed: "No doubt the content and import of the section are very wide. It applies not only to the actual smuggler from whose possession the goods are seized but also to those who came into possession of the goods after having purchased the same after the same has passed through many hands or agencies For example, if the Customs authorities have a reasonable belief that certain goods in the possession of an innocent party are smuggled goods and the same is seized under the provisions of this Act, then the person from whose possession the goods were seized, however innocent he may be. has to prove that the goods are not smuggled articles. This is no doubt a very heavy and onerous duty cast on an innocent possessor who for sight one knows, may have bona fide paid adequate consideration for the purchase of the articles without knowing that the same has been smuggled. The only pre-requisite for the application of the section is the subjectivity of the Customs officer in having a reasonable belief that the goods are smuggled." 6. The expression "reason to believe" finds a place both in S.105 of the Customs Act relating to search and also in S.110(1) relating to seizure of goods. It has been held In Ganeshmul v. Collector, Central Excise, Bangalore (AIR. 1968 Mysore 89) that the belief meant thereunder is a subjective belief on grounds which the officer concerned need not disclose and which are not subject to judicial review. S.110(1) was the provision which was interpreted in that case. 7. In Gopikisan v. Asst. Collector, Customs, Raipur (AIR. 1967 SC. 1298) S.105 of the Customs Act dealing with search came up for discussion. It was held that though the Assistant Collector cannot make a search or authorise any officer to make a search unless he has reason to believe the existence of the facts mentioned in the section, the section does not compel him to give reasons. The Supreme Court observed: "While it may be advisable, and indeed proper, for him to give reasons, the non-mention of reasons in itself does not vitiate the order. Nor can we agree with the appellant that the particulars of the nature of the goods and of the documents should be given in the authorisation. Obviously, no question of giving of particulars arises if he himself makes the search, but if he authorises any officer to do so, he cannot give the particulars of the documents, for they will be known only after the search is made. Doubtless he has to indicate broadly the nature of the documents and the goods in regard to which the officer authorised by him should make a search, for without that his mandate cannot be obeyed". 8. In Pukhraj v. Kohli (AIR. 1962 SC 1559) while interpreting S.178A of the Sea Customs Act, which, as already stated, corresponds to S.123(1) of the Customs Act, the Supreme Court stated as follows: "The last contention raised by Mr. 8. In Pukhraj v. Kohli (AIR. 1962 SC 1559) while interpreting S.178A of the Sea Customs Act, which, as already stated, corresponds to S.123(1) of the Customs Act, the Supreme Court stated as follows: "The last contention raised by Mr. Bobde was that there is nothing on record to show that the seizure of gold from the appellant had been effected by the officer concerned acting on a reasonable belief that the said gold was smuggled. It would be recalled that S.178A of the Sea Customs Act requires that before the burden can be imposed on the appellant to show that the goods in question were not smuggled, it has to be shown that the goods had been seized under the said Act and in the reasonable belief that they were smuggled goods. The argument is that the question as to whether there was a reasonable belief or not is justiciable. and since there is no material on the record to show that the belief could have been reasonable, the statutory presumption cannot be raised. In our opinion, this argument is not well-founded. There are two broad features of this seizure which cannot be ignored The first feature on which the officer relied is supplied by the quantity of gold in question. It was found that the appellant was carrying on his person five pieces of gold bullion weighing at much as 290.6 tolas. Then the other fact on which the reasonable belief can be founded is the suspicious circumstances of the appellant's journey. After-all, when we are dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not, we are not sitting in appeal over the decision of the said officer. All that we can consider is whether there is ground which prima facie justifies the said reasonable belief That being so, we do not think there is any substance in the argument that the seizure was effected without a reasonable belief and so is outside S.178A." 9. The ratio of the above decisions makes it clear that it is the subjective satisfaction of the concerned officials that decides the burden of proof under S.123(1) in respect of articles mentioned in S 123(2) of the Customs Act. In a controversy regarding burden of proof under S.123(1). The ratio of the above decisions makes it clear that it is the subjective satisfaction of the concerned officials that decides the burden of proof under S.123(1) in respect of articles mentioned in S 123(2) of the Customs Act. In a controversy regarding burden of proof under S.123(1). the court is to consider only whether there are prima facie materials to justify the claim of reasonable belief put forward by the officials, the standard being that of a reasonable and pruden man placed under the circumstances of the case. Reasonable belief only means a belief within the limits of reason based on the materials available and not an absurd conclusion. 10. The learned Magistrate placed reliance on two decisions of this Court, Markose Aranoutakis v. Collector of Customs (1972 KLT. 231) and Assistant Collector of Customs v. Pratap Rao Sail (1972 KLT. 307). The first of these cases has no application to the special provision contained in S.123 (I) of the Customs Act. What is mentioned therein is only that (he fundamental principles of criminal jurisprudence and of natural justice apply also to proceedings under the Customs Act and if so, the burden of proof is on the Customs authorities and they have to bring home the guilt of the person alleged to have committed a particular offence under the Act by adducing satisfactory evidence. There is no doubt that S.123 (1) is a deviation from the above general principles relating to burden of proof in criminal cases. It is a special provision relating to burden of proof is respect of articles referred to in S.123 (2) and states that under particular conditions, the burden is on the accused. Assistant Collector of Customs v. Pratap Rao Sait (1972 KLT. 307) is no doubt a case falling under S.123. Therein, the Assistant Collector of Customs issued Ext P6 authorisation to Pw. 4, the Preventive Inspector to conduct a search The Preventive Inspector conducted a searh and seized some gold bars and gave a report, Ext. P4. The legality of the search and recovery was challenged in an appeal against conviction under S.135 (b) (ii) of the Customs Act The learned single judge who disposed of the case after a reference to Pukhraj v. D R Kohli (AIR. 1962 SC. 1559) and Gopikisan v Assistant Collector, Customs, Raipur (AIR. P4. The legality of the search and recovery was challenged in an appeal against conviction under S.135 (b) (ii) of the Customs Act The learned single judge who disposed of the case after a reference to Pukhraj v. D R Kohli (AIR. 1962 SC. 1559) and Gopikisan v Assistant Collector, Customs, Raipur (AIR. 1967 SC 1298) observed that reasonable belief should be entertained by the officer before the issue of authorisation and in the case before him, the materials available in the case did not show that before the authorisation was issued to search the premises of the accused, the officer who issued the authorisation had the reasonable belief that smuggled gold was secreted in the premises of the accused. The learned judge also held that the prosecution did not succeed in proving the case set up that what was seized was gold. While considering this aspect, the court referred to the decisions in Assistant Collector, Customs, Baroda v M. Ibrahim Pirjada (1970 Crl. L J. 1305) and Comptroller of Customs v. Western Electric Co. Ltd. (1966 A C. 367) which held that mere markings could not be taken as proof of foreign origin of goods as such marking and labels would be hearsay evidence. The learned judge then observed that it would "be unwise from the markings alone to be drawn to the conclusion that the article is of foreign origin " The decision is not an authority for the proposition that the markings on the articles cannot be used for any purpose. 11. No authority has been brought to my notice which states that the appearance of an article which may include the existence of marks suggesting foreign origin should not be taken into account in deciding whether particular articles arc smuggled goods. The Supreme Court has laid down in Issardar Daulat v. Union of India (AIR. 1966 SC. 1867) that whether particular goods are of foreign origin could be inferred from circumstances. That appearance of the article and the inscription thereon have also something to do in deciding the question of origin is apparent from the decisions of the Supreme Court. In Kewal Krishan v. State of Punjab (AIR. 1966 SC. 1867) that whether particular goods are of foreign origin could be inferred from circumstances. That appearance of the article and the inscription thereon have also something to do in deciding the question of origin is apparent from the decisions of the Supreme Court. In Kewal Krishan v. State of Punjab (AIR. 1967 SC 737), gold bars seized by the Customs officials included bars of pure gold some bearing the stamp of Johnson Mathey and Co., Ltd, 999-10 tolas and others bore marks of N. M. Rothschild and sons 10 tolas (990-0) It was contended before the Supreme Court that the mere existence of stamp of foreign companies on gold did not necessarily prove that the gold was of foreign origin as it might be put on spurious gold which may be of Indian origin. The Supreme Court observed: "In our opinion apart from the fact that this question has not been raised, it is quite clear that when S 178A of the Sea Customs Act provides that when the goods are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized The onus is on him to show that the goods are not smuggled, that is, not of foreign origin on which duty is not paid. The onus is not on the prosecution to show that the goods are not of Indian origin." In Hukma v. State of Rajasthan (AIR, 1965 SC. 476), the gold that was seized consisted of 6 blocks bearing marks "999" N. M. Rothschild and Sons. The prosecution claimed that under S.178A of the Sea Customs Act, the burden of proving that the gold was not smuggled lay on the accused. 476), the gold that was seized consisted of 6 blocks bearing marks "999" N. M. Rothschild and Sons. The prosecution claimed that under S.178A of the Sea Customs Act, the burden of proving that the gold was not smuggled lay on the accused. It was held: " the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that the accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country." In Balumal Jamnadas v. State of Maharashtra (AIR 1975 SC. 2085), the goods consisted of 11 wooden boxes with jute cloth and covered by iron strips. On opening them, six of them were found to contain cigarette lighters of "Imco Triplex Junior" brand "Made in Austria." Each of the six boxes was tightly packed with 1200 lighters. The remaining 5 boxes contained 50 sealed tins of flints for cigarette lighters which bore the following writing: "Tego Lighter Flints of Superior Quality Made in Germany." On the wooden boxes containing the lighters were found written "Dubai" and "Made in Austria". The five boxes containing flints had the words "Dubai" and "Made in West Germany inscribed on them It was held: "The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were parts of the State in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise." The identical reasoning applies to the instant case. The inscription on some of the bundles was "Asahi Kasei Nylon, Made in Japan, 15-1-3000" while in others, "Asahi Nylon, Kasei, Asahi Chemical Industry Co. The inscription on some of the bundles was "Asahi Kasei Nylon, Made in Japan, 15-1-3000" while in others, "Asahi Nylon, Kasei, Asahi Chemical Industry Co. Ltd., Osaka, Japan, Made in Japan." The bundles contained the inscription'Destination Dubai in transit.' The prosecution case is that import of Nylon yarn into India, is prohibited under the Import Control Order of 1955 (as amended) issued under S.3(1) of the Import and Export (Control) Act 1947 read with S.11 of the Customs Act, and that the goods involved in the case have been notified S.123(2) of the Customs Act, 1962. This position is not seen disputed before the trial court. If that be so, the appearance of the goods, the inscriptions thereon, and the fact that the accused were not in a position to give proper explanation for the possession of such a large quantity of yarn in unopened bundles, are circumstances which can be taken into account by the Customs Officials to form a reasonable belief under S.123(1) of the Customs Act. The burden is, therefore, on the accused to show that the goods are not of foreign origin. 12. The court disposed of the case casting the burden of proof on the complainant and stating that the complainant did not discharge the onus. The court also failed to consider material items of evidence such as Exts. P2 to P4, the statements of the accused recorded by the officers of the Customs Department. In the light of what I have stated above regarding the onus of proof, the case has to be disposed of afresh by the trial court applying the correct principles of law and after a re-appraisal of the evidence let in. The appeal is accordingly allowed. The order of acquittal is set aside. The case is remanded to the trial court for fresh disposal, according to law.