UNION OF INDIA v. RAMNATH P. VERNEKAR — 1981 DIGILAW 262 (BOM)

JUDGEMENT 1. This appeal by leave of this Court is directed against the order of acquittal passed by the learned Sessions Judge on 21st Nov., 1977 in Criminal Appeals Nos. 41 and 42, both of 1977. 2. Appellants herein have filed a criminal complaint against the respondents for offences punishable under Sec. 135(b) of the Customs Act and S.8(i), (ii), (iii) of the Gold Control Act, 1968 because according to the prosecution in pursuance of an information, a party of local police officers headed by a Dy. S.P. raided the residential premises of the respondents on 24-12-69 and on their entering the house, respondent Rohidas hastily removed a bundle of khaki cloth hanging on one of the walls and after sticking the same under his left armpit, began to wear a bush shirt. He was caught and then 27 gold bars with the following mark : "Johnson Matthey London - 9950 - 10 tolas" were found in the said bundle. Police seized under a panchanama the said gold bars with the reasonable belief that the same gold had been smuggled into India. Later on, the said gold bars were handed over to the Customs Officers under panchanama. The learned Chief Judicial Magistrate, who tried the case, convicted the three respondents for both the offences by his judgement dated 9th Feb., 1977. Petitioners being aggrieved by the said judgement and conviction passed by the learned Chief Judicial Magistrate, preferred appeal to the Sessions Court and the learned Sessions Judge, Panaji acquitted them of the offence punishable under S.135 of the Customs Act on the ground that the prosecution had not discharged the burden of proving that the seized gold had been smuggled into India by the respondents and further, that the onus to prove that the said gold bars had not been smuggled had shifted from the respondents to the prosecution. 3. It is against this order of acquittal that petitioners filed the present appeal after obtaining leave of this Court. 4. The only point for determination of the Court is whether or not the presumption under S.123 of the Customs Act arises in the present case. 5. It was argued before me by Mr. G.D. Kamat, learned counsel appearing for the petitioners, that the learned Sessions Judge erred whilst acquitting the respondents of the offence punishable under S.135 of the Customs Act. 5. It was argued before me by Mr. G.D. Kamat, learned counsel appearing for the petitioners, that the learned Sessions Judge erred whilst acquitting the respondents of the offence punishable under S.135 of the Customs Act. In fact, it is his contention that in this case the presumption under Section 123 of the Customs Act was to be applied because the gold bars had been attached from the accused persons and such attachment of seizure was done under the Act on the reasonable belief that the same were smuggled. He further submitted that the circumstance that the seizure was initially done by the police officers is irrelevant, considering that, under S.151 of the Customs Act, Police officers are duty bound to assist the customs officers for the purposes of the Act. He further brought to my notice that it is clear from the panchanama of the seizure by the police that the said seizure was done under the reasonable belief that the gold was smuggled into India and thereafter the same gold was handed over to the Customs officers under a second panchanama. In these circumstances, it is the case of Mr. Kamat that what was held in Gian Chand v. State of Punjab, AIR 1962 SC 496 : (1962 (1) Cri LJ 485) is not attracted to the facts of the instant case. Indeed, the said case of Gian Chand was interpreted by the Bombay High Court in Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138 : (1967 Cri LJ 715). In this case, the Bombay High Court held that the ruling of the Supreme Court above cited has to be read in the context of the facts of that particular case and it cannot be regarded as an authority for the proposition that if in officer not competent to do so, wrongfully seizes goods, they cannot subsequently be seized by a officer who is lawfully empowered to seize them. It was further held by the Bombay High Court that S.110 does not place any limitation as to the persons from whose possession or the time and the place at which the goods believed to be liable to confiscation, can be seized, for if there is reasonable ground to believe that the goods are liable to confiscation they can be seized from any person who has custody of them even if he has obtained such custody unlawfully. In the instant case. Mr. Kamat submitted, it is clear from the record that the police officers, who seized the gold bars from the respondent No. 3, did it in the reasonable belief that they were smuggled goods and as such, the burden of proving that they were not smuggled was lying on the respondents in. view of the clear provision of S.123 of the Customs Act. 6. As against this, Mr. M. Rao, learned advocate appearing for the respondents, submitted that the views of the Bombay High Court given in the ruling cited by Mr. Kamat are not to be accepted and on the contrary, a different view was taken by the Madras, Mysore and Andhra Pradesh High Courts. In fact, in the case of 'Bhoormal Premchand v. Collector of Customs' ( AIR 1967 Mad 39 ) the Madras High Court held that a seizure under the authority of law does involve a deprivation of possession and not merely of custody and so, when the police officer seizes the goods, the accused loses possession which vests in the police. It was further held that when that possession is transferred, by virtue of the provisions contained in S.180, to the Customs authorities, there is no fresh seizure under the Sea Customs Act and it would therefore follow that, where the gold was first seized by the police authorities under their powers either under S.550, Cr. P.C. or 527 of the Madras City Police Act, and was then passed on to the Customs Officer under S.180 of the Sea Customs Act for further action, it could not he said that the gold was seized by the Customs authorities under S.178-A in the reasonable belief that it was smuggled gold. P.C. or 527 of the Madras City Police Act, and was then passed on to the Customs Officer under S.180 of the Sea Customs Act for further action, it could not he said that the gold was seized by the Customs authorities under S.178-A in the reasonable belief that it was smuggled gold. Similar were the views of the Mysore and the Andhra Pradesh High Courts in the case of 'Superintendent of Central Excise v. Armugam Pillai (AIR 1967 Mys 175) : (1967 Cri LJ 1350) and in the case of 'Public Prosecutor v. Babulal' (AIR 1971 Andh Pra 345). Further, Mr. Rao submitted that the Supreme Court has laid down in clear terms in the case of Gian Chand v. State of Punjab ( AIR 1962 SC 496 ) : (1962 (1) Cri LJ 485) that the seizure from the owner of the property under S.180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the Criminal Procedure Code. He also submitted that, in any event, the appeal being against an acquittal, if the view of the trial Court is reasonably possible, it is not for the High Court to disturb the judgement of the trial Court even when a different view is possible. He placed reliance in support of his contention in decisions of the Supreme Court in 'Dinanath Singh v. State of Bihar' ( AIR 1980 SC 1199 ) : (1980 Cri LJ 921) and in the case of 'Marudanal Augusti v. State of Kerala' ( AIR 1980 SC 638 ) : (1980 Cri LJ 446). 7. As can be seen from the panchanama dated 24th Dec., 1969, a police party headed by Dy. S.P. Kadam had raided the house of the respondents on an information that there existed smuggled gold in the said house. From this bare statement, which is incorporated in the beginning of the panchanama itself, it becomes clear that the police raided the house of the respondents only on account of the said information that some smuggled gold was to be found in the same house. Therefore, the attachment/seizure done by the police in pursuance of the information obtained by them has to be construed to be in the reasonable belief that the said gold was smuggled into India. Therefore, the attachment/seizure done by the police in pursuance of the information obtained by them has to be construed to be in the reasonable belief that the said gold was smuggled into India. Besides, S.151 of the Customs Act, 1962 provides that the police officers are empowered and required to assist officers of Customs in the execution of this Act. This being so, as correctly submitted by Mr. G.D. Kamat, the police officers who seize some goods in the reasonable belief that they are smuggled, actually act under the Customs Act and the attachment and seizure done by them of such goods is to be considered for all purposes as a seizure under the same Act. In the case of Gian Chand (1962 (1) Cri LJ 485 at pp. 488, 489), their Lordships of the Supreme Court held that :- "Sections 178, 178-A and 180, which have to be read together, draw distinction between seizure under the Act and a seizure under the provisions of other laws. A seizure under the Act is one for which the authority to seize is conferred by the Act and in the context it could be referred to as a seizure under S.178. The seizure from the owner of the property under S.180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the Criminal Procedure Code. The last part of Sub-Section (1) of S.178 lays the burden of proving that the goods are not smuggled on "the person from whose possession the goods are taken". When the goods are delivered to the Customs authorities by the Magistrate under S.180 they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the Section contemplated "proof to the contrary" by the Magistrate under whose orders the delivery is effected. Hence, the possession obtained by the Customs department by goods being "conveyed to and deposited at the nearest Custom house" within the last words of the second paragraph of S.180 are not goods which have been seized under the Act within the opening words of S.178-A. And in such a circumstance the terms of S.178-A which, require a seizure under the Act are not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the goods were not smuggled on the accused." It is clear therefore that, as held by the Bombay High Court in the case of 'Vasantlal Ranchhoddas Patel v. Union of India ( AIR 1967 Bom 138 ) : (1967 Cri LJ 715), the aforesaid decision of the Supreme Court has to be read in the context of the facts of that particular case namely that the seizure was done under the provisions of the Cr. P.C. and not in the reasonable belief that the seized goods were smuggled. Hence, what matters really is to see whether or not the seizure was done by the authorities empowered under the Customs Act in the reasonable belief that the goods were smuggled. The rulings cited by Mr. Rao are in no manner going against the view expressed above. In fact, in the cases where such rulings were given, the seizure has been done not under the Customs Act but under different laws and therefore, the same could not be construed as being seizure done under the Act. In our particular case, as already stated, the police officers seized the gold bars under the reasonable belief that they were smuggled and immediately after, handed them over under panchanama to the Customs officers. This being so, I am of the considered opinion that in the circumstances of this particular case one has to hold that the seizure done by the police is for all the purposes a seizure done under the Act and hence, the presumption under Section 123 of the Customs Act arises in this case. 8. The learned Sessions Judge held in the impugned judgement that :- "Section 110 of the Act clearly refers to the Customs-officers seizing goods on the reasonable belief that they are liable to confiscation under the Act. 8. The learned Sessions Judge held in the impugned judgement that :- "Section 110 of the Act clearly refers to the Customs-officers seizing goods on the reasonable belief that they are liable to confiscation under the Act. Section 123 of the Act expressly prescribes that the said Section applies when the goods are seized under the Act in the reasonable belief that they are seized (smuggled ?) goods. Hence, the presumption of S.123 can exist only when the seizure is made by the Customs officers of goods liable to confiscation in the reasonable belief that they are smuggled goods." It was on this ground alone that the learned Sessions Judge reversed the conviction of the respondents for offences punishable under Section 135(2) of the Customs Act. This view is clearly erroneous for the reasons already given above. In fact, in the circumstances of the case, the seizure done by the police has to be construed as a seizure under the Act and consequently, the presumption under S.123 of the Act arises. 9. The learned Sessions Judge did not discuss the evidence on record as to arrive at a finding as to whether or not the respondents had discharged the burden of proving that the seized gold had not been smuggled, which burden was lying on them by virtue of the provisions of S.123 of the Customs Act. This Court is entitled to get the benefit of such discussion of the evidence on that point by the learned Sessions Judge and therefore, the remand of the case is justified. 10. Relying on the rulings of the Supreme Court in Marudanal Augusti v. State of Kerala, AIR 1980 SC 638 : (1980 Cri LJ 446) and in Dinanath Singh v. State of Bihar, AIR 1980 SC 1199 : (1980 Cri LJ 921), it was also contended by Mr. M. Rao that in an appeal against an acquittal, the High Court is not justified to interfere only because a view different from the one of the lower Courts can be taken. M. Rao that in an appeal against an acquittal, the High Court is not justified to interfere only because a view different from the one of the lower Courts can be taken. However, both these rulings of the Supreme Court are not applicable to the instant case because what was held by their Lordships of the Supreme Court is that where the view taken by the trial Court in acquitting the accused is reasonably possible, even if the High Court were to take a different view on the evidence, that is no ground for reversing the order of acquittal. In other words, the intervention of the High Court is not justified when the evidence may be assessed and interpreted in a manner different from the one taken by the trial Court, provided the latter assessment is reasonably possible. In the instant case, the question before the Court is not related at all with the assessment of the evidence but it is purely on a point of law. 11. In view of the above, the appeal has substance and is to be allowed. The judgement of the learned Sessions Judge dated 21st November, 1977 is therefore, set aside in the part where the respondents had been acquitted of the offence punishable under S.135 of the Customs Act and the case is remanded to the Sessions Judge with a direction to reassess the evidence in the light of the observations made above. Appeal allowed.