ASST COLLECTOR OF CENTRAL EXCISE Vs. VASANTHAKUMAR

JUDGEMENT

(1.) 1. The appeal has been directed against the order of acquittal passed by the Court of Additional Judicial Magistrate of I Class, Trivandrum in a complaint filed by the Assistant Collector of Central Excise, Trivandrum, alleging that both the respondents committed offences punishable under S. 135 (1) of the Customs Act 1962. In acquitting the respondents the learned Magistrate based his decision mainly on the non-production of the notifications or copies thereof issued by the Central Government in exercise of the powers conferred by S. 11b and 123 (2) of the Customs Act which is referred to hereinafter as 'the Act' for short. S. 11b of the Act lays down as follows: " 11b. Power of Central Government to notify goods. If having regard to the magnitude of the illegal import of goods of any class or description, the Central Government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import circulation or disposal of such goods, or facilitating the detection of such goods, it may, by notification in the official gazette, specify goods of such class or description. S. 123 of the Act reads as follows: " 123. Burden of proof in certain cases. (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 goods 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. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. "

(2.) THE notifications issued by the Central Government in exercise of the powers conferred by the above provisions were neither produced nor marked by the prosecution before the lower Court in this case. Accepting the contention raised by the counsel for the respondents the learned Magistrate took the view that the above notifications could not be taken judicial notice of by the court, since the said notifications are not laws in force within the meaning of S. 57 (1) of the Evidence Act. It is not disputed that the said notifications do not come under any other categories enumerated in clauses (2) to (13) of S. 57 of the Indian Evidence Act, 1872, which are required to be taken judicial notice of by the Court.

(3.) ON the respondents pleading not guilty to the charge, P. Ws 1 to 6 were examined and Exts. P1 to P5 and M. Os. 1 to 36 were marked. The respondents denied the incriminating circumstances appearing against them According to them the goods seized were not stored for sale in the shop. The 1st respondent stated that all the articles were brought by him from Mali Island after payment of Customs duty for his domestic use. The 2nd respondent also gave a similar version. ON behalf of the defence D. W 1 the officer in charge of the State Bank of Travancore, Air Port Exchange Trivandrum, was examined and Exts. D1 and D2 were marked.