VENUGOPALAN Vs. UNNIKUTTY PANICKER

JUDGEMENT

(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 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.