ASSISTANT COLLECTOR CUSTOMS BARODA Vs. MUKBUJUSEIN IBRAHIM PIRJADA

JUDGEMENT

(1.) The plaintiff Assistant Collector Customs Baroda and the State of Gujarat have filed this appeal against the acquittal of the original accused No. 1 for the offence under sec. 135(b)(ii) of the Custom Act 1962 The case of the prosecution was that on September 28 1961 at about 3-15 A.M. accused No. 1 Mukbul Husain alighted at Baroda from the Janta Express train coming from Bombay. While he was passing through the third class passengers Exit gate police constable Navalsing stopped him at the gate as the accused was not able to give satisfactory answers when he was found carrying a hand-bag. The accused wa detained and the police constable Jivamiya was called. The hand-bag a the accused was searched and 50 bars of gold each weighing 10 Tolas worth about Rs. 70 0 were found from the accuseds (theli) bag inside the hand-bag. The gold bars are alleged to have foreign markings N.M Rothschild & Sons 10 Tolas 999 Panchanama Ex. 12 was mad of the seizure of the gold. The Police Station Officer Dayashanker arrested the accused under sec. 54(4) Cr. P. Code Thereafter the Circle Police Inspector Rathod informed the Customs Authorities an handed over the accused muddamal articles for which the receipt Ex. 1 was issued and the panchanama paper to the Deputy Superintendent of Central Excise Mr. Dixit. Mr. Dixit made a fresh panchanama Ex 16 of the seizure of these goods. After a sanction was obtained the Assistant Collector Customs filed a complaint against the present accused and two other persons one Mohmad Safi who was alleged to have purchased the gold with money sent through the accused No. 1 by one Ismali Haji accused No. 3 to whom ultimately this gold was to be delivered. All the accused were put up for trial for the charge under sec. 135 of the Customs Act 1962 hereinafter referred to as the Act for possessing acquiring and dealing with the prohibited gold of foreign marks which was liable to be confiscated under sec 111 of the Act The plea of the accused was of complete denial. Accused No 1 stated that Safi met him in Bombay and handed over to him the bag to be delivered to his brother Gulam at Baroda. He did not know the contents and put the same in his handbag. The learned Magistrate acquitted the other two accused. The learned Magistrate held that so far as accused No. 1 was concerned in view of the seizure of the goods by the Customs Officers presumption under sec. 123 was attracted and the burden was on the accused to show that the gold was not smuggled gold. The learned Magistrate therefore convicted the accused No 1 for the offence under sec. 135(b)(ii) of the Act and sentenced him to suffer R I. for three months and a fine of Rs. 1000.00 in default rigorous imprisonment for four months. In appeal the learned Sessions Judge has acquitted the accused on the ground that as the goods were seized by the Police the presumption under sec. 123 was not attracted. The prosecution having failed to prove the gold in question to be smuggled gold the accused No. 1 also was acquitted Against the said order the present appeal is filed.

(2.) On the facts in the present case there can be no dispute that the gold in question was seized by the Police authorities from the accused No. 1 on 28-9-1963 as per panchanama Ex. 12 and the receipt was passed at Ex. 14 in that connection. Mr. Mehta the learned Assistant Government Pleader vehemently argued that the panch witness has deposed that at the time of the panchanama Ex. 16 made by the Customs authorities the goods were seized from the accused No. 1. There is no substance in this contention. The panch witness Navinchandra Thakkar can hardly be believed in this connection. The Police Inspector Mt. Rathod had in terms deposed that when Mt. Dixit the Customs Officer came to him he made over the muddamal articles papers and accused to hIm as per the Yadi Ex. 15 which in terms recites this fact. Mr. Dixit in terms deposes that on September 28 1963 the muddamal articles seized by the Railway Police had been handed over to him as per Yadi Ex. 15. He took the custody of these articles accused and the police papers and took them to the Customs Preventive Office before oven he drew the panchanama Ex. 16. It is therefore clear that the panchanama Ex. 16 is not of the seizure of the goods from the accused but it is only a paper panchanama of the delivery of the goods. It is only a paper panchanama which would show that the goods which were seized by the police authorities were kept in the custody of the Customs authorities. Therefore the goods having not been seized by the Customs authorities from the possession of the accused the presumption under sec. 123 would not be attracted in this case.

(3.) Sec. 123(1) in terms provide that whore 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 gold shall be on the Person from whose possession the goods were seized. (2) This section shall apply to gold...and any other class of goods which the Central Government may by notification in the official Gazette specify. Therefore presumption in case of gold can arise under sec. 123(1) and (2) provided gold is seized under the Act by the Customs authorities from the possession of the accused. In the present case gold was seized not by the Customs authorities under the Act but by the Police authorities under the provisions of Criminal Procedure Code after the accused No. 1 was arrested under sec. 54(4) under the panchanama Ex. 12. Therefore the seizure was not under the Act but de hors the Act when it was done by the police authorities The accused having lost possession of these goods by this act of seizure by the police authorities there was no question of the seizure of the same goods when their custody was transferred to the Customs authorities by the Police authorities. Merely making of a fresh panchanama Ex. 16 would not amount to a seizure of the goods under the Act from the possession of the accused so as to throw the burden on the accused to prove that the gold in question was not smuggled gold. The position of law in this connection is well settled after the decision of the Supreme Court in Gian Chand v. State of Punjab A.I.R. 1962 S.C. 496 where Their Lordships of the Supreme Court interpreted an identical corresponding provision in sec. 178(A) of the Sea Customs Act 1878 At page 499 Their Lordships of the Supreme Court observed that the last part of sub-sec. (1) of sec. 178A lays the burden of proving that the goods are not smuggled on the person from whose possession the goods are taken. Assuredly when the goods are delivered to the Customs authorities by the Magistrate 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 was effected. Their lordships further pointed out that when the goods were seized by the police they ceased to be in the possession of the accused and passed into the possession of the police and when they were with the Magistrate it was unnecessary to consider whether the Magistrate lead possession or merely custody of the goods. Because the seizure under the authority of law Involves a deprivation of possession and not merely custody and so when the police officer seized the goods the accused lost possession which thereafter vested in the police. When that possession was transferred by virtue of the provisions contained in sec. 180 to the Customs authorities there was no fresh seizure under the Customs Act. This decision furnishes a complete answer to the present question that in order to attract the presumption under sec. 123 the goods must be shown to have been seized under the Act from the possession of the accused by the Customs authorities. If the goods were originally seized by the Police authorities from the possession of the accused the accused lost possession by seizure under the provisions of the Criminal Procedure code and thereafter the possession vested in the Police authorities. If thereafter the customs authorities got the custody of these goods they could not be said to have seized under the Act so as to throw the burden on the accused to prove that the gold in question was not smuggled gold. Mr. Mehta vehemently argued that the decision of the Supreme Court was in connection with sec. 18 of the Sea Customs Act. There is no substance in that contention as the decision is clearly based on the wording of the identical sec. 178A. The decision in terms lays down that the burden would be thrown on the accused only when the goods are seized under the Act from the possession of the accused. If the possession of the accused is lost by the seizure of the goods by the Police authorities the presumption under sec. 123 would not arise. Mr. Mehta next rolled upon the decision of the Maharashtra High Court in Vasantlal v. Union of India A.I.R. 1967 Bom. 138 by the Division Bench consisting of Chainani C.J and Kotwal J. That decision cannot help Mr. Mehta for the simple reason that in that case the goods were wrongfully seized by the Office of the Enforcement Department who was not competent to do so and therefore It was held that when they were first lawfully seized by the Customs authorities It was a case of seizure under the Act and it was on that ground that the decision in Gian Chands case was not distinguished That decision does not help Mr. Mehta for the simple reason that in the present case the Police Officer was entitled to seize the goods under the provisions of the Criminal Procedure Code when the accused was arrested under sec. 54(4). Mr. Mehta also relied upon the decision of Mukherji J in Deputy Superintendent Customs v. Sitaram A.I.R. 1968 Cal. 274. That in a case where the goods which were in the custody of the Magistrate were ordered to be delivered to the Customs authorities. That decision can never help Mr. Mehta for contending that the goods which had been seized by the Police authorities and by which the accused lost possession could be said to have been again seized from the accused under the Act so as to throw the burden of proof under sec. 123(1). Therefore the learned Sessions Judge was right in holding that in this case the presumption under sec. 123(1) could not help the prosecution and the prosecution must prove the essential ingredient of the offence by proving that the gold in question was smuggled gold.