SANTOSH GUPTA Vs. UNION OF INDIA

JUDGEMENT

(1.) Pursuant to the notice dated 24th April, 1976 issued by the Assistant Collector of Customs, Central Intelligence Unit of Bombay, proceedings were held under Section 111(d) of the Customs Act, 1962 , in which the petitioner and her husband were called upon to show cause why certain goods which were attached from their house should not be confiscated under the above mentioned provision. The Assistant Collector of Customs, who was the authority of first instance, by his judgment and order dated 19th October, 1977 ordered the confiscation of, among other things, two zoom lenses under Section 111(d) of the Customs Act. Similarly he also ordered the confiscation of 12 rolls of gilletin filters under the same provision of law. The Assistant Collector also imposed a personal penalty of Rs. 10,000/- on the petitioner's husband and a penalty of equal amount on the petitioner under Section 112 of the Customs Act. This was naturally without prejudice to any other action that could be taken under the Customs Act. This order was appealed against by both the petitioner and her husband. The Central Board of Excise and Customs by its order dated 28th September, 1979 modified the order of the first authority by setting aside the order against the petitioner's husband. Even in the case of the petitioner, the order of confiscation was confined to only two zoom lenses and 12 rolls of gilletin filters whereas in the trial Court, some more goods were also ordered to be confiscated. The penalty imposed upon the petitioner was reduced to Rs. 1000/-.

(2.) The petitioner preferred a revision application to the Government of India and the Government by its order dated 10th October, 1979 confirmed the order of the appellate authority. This last order is the subject-matter of challenge in this petition under Article 226 of the Constitution.

(3.) With the assistance of Mr. Mehta, the learned Advocate appearing in support of the petition, and Mr. Rege, the learned Advocate appearing for the respondents, I have gone through the judgments of the three authorities below and also certain parts of the material evidence which has been brought to my notice. Normally this Court exercising its jurisdiction under Article 226 of the Constitution would be loath to interfere with what could be regarded as a finding of fact recorded by the final Court of facts and confirmed by the revisional authority. However, on going through the material on record, on the facts and circumstances of this case it is seen that there is an error of law in the judgment of the authorities below inasmuch as they proceeded on the basis that the burden of proving that she was not guilty of the misdemeanour with which she was charged was on the peititioner. The proceedings under the Customs Act, even the departmental proceedings, are in the nature of penal proceedings and, therefore, the burden of proving its case is always upon the Department except where Section 123 of the Customs Act is attracted. The three authorities below in this case have held that the goods in question are not covered by the provisions of Section 123 of the Customs Act. Therefore, one must proceed on the basis as to whether the Department has discharged the burden which rests upon it before calling upon the petitioner to disprove the Department's case.