UNION OF INDIA Vs. KASAMBHAI UMERBHAI KURESHI

JUDGEMENT

(1.) This is an appeal against acquittal. The case of the prosecution was that the respondent was dealing with textile fabrics and nail cutters of foreign origin which had been smuggled into India. The respondent was the owner and driver of the truck which was carrying the goods in question when they were seized by the Police at the material time.

(2.) It can hardly be disputed that, if S. 123 of the Indian Customs Act, 1962 , hereinafter referred to as "the Act" is not attracted, the prosecution had not discharged the burden of proving the guilt of the respondent. Therefore, the short question before me is whether Section 123 is attracted in the present case and whether the burden lies on the respondent/defendant to prove that the goods in question were not smuggled goods.

(3.) The goods were seized from the petitioner by the police. The accused and the goods seized were taken to the Police Station and a panchanama was prepared. Thereafter the goods were handed over by the Police to the Customs Authority. It is evident that the seizure of the goods was not made by the Customs Authority. The expression "seize" was defined by the Supreme Court in Gian Chand V/s. State of Punjab , 1962 AIR(SC) 496 in the context in which it is used in the Act. That word was stated to mean the taking of possession, contrary to the wishes of the owner of the property. It cannot be denied that in the instant case, as far as the Police was concerned, there was a seizure of the goods from the accused/respondent, but as far the Customs Authorities were concerned, the goods were received and not seized by them, because they were willingly parted with by the Police, who by that time had the custody of the goods, to the Customs Authorities. There was therefore no seizure of goods within the meaning of S. 123 in the present case. Besides, the seizure must be with the reasonable belief that they are smuggled goods. There is nothing on record to show that the goods were seized by the Police in the reasonable belief that they were smuggled goods. For all we know the police might have seized the goods under the bona fide belief that goods were smuggled goods. For these two reasons it is not possible to apply the provisions of S. 123 (1) of the Act to the present case and shift the burden of proof to the respondent to prove his innocence.