MANICKLAL SEN Vs. ADDITIONAL COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) The petitioners in this case are (i) Sri Manick Lal Sen carrying on business under the name and style of "Kedar Nath Dutt" at No. B-82, New Market, Calcutta and (2) Sri Abdul Hafiz. On or about 11th October, 1961 a search was conducted by the officers of the Customs at the place of business of the petitioner No. 1, on the strength of a search warrant issued by the Chief Presidency Magistrate Calcutta. As a result of the search the customs officers seized 28 pieces of Transister Radio Sets, 2 pieces Transister Phonographs, lip sticks, cigarette lighters, shaving razors, batteries for transister radio sets, electric shavers, fountain pens and other stationery goods as mentioned in a seizure list, a copy whereof is annexed to the petition and marked with the letter "A". On the 15th November, 1961 a show cause notice was served upon the petitioner No. 1 a copy whereof is annexure "B" to the petition. It was stated in the show-cause notice that the goods seized were of "foreign origin". It was stated that the petitioner No. 1 could not produce any books of account to show proper entries relating to legal acquisition of the goods. The petitioner No. 1 being summoned under Section 171A of the Sea Customs Act to produce document if any, showing the legal importation of the goods, gave a statement on the 12th October, 1961. He stated that 28 pieces of transister radio sets and two pieces or transister phonographs did not belong to him but to the petitioner No. 2, who with a view to start a business in radio procured and/or purchased the said goods from diverse dealers for valuable consideration and had papers and documents relating thereto. It was further stated that the petitioner No. 1 being a friend of the petitioner No. 2 allowed him the. facilities of storing the said goods temporarily until the petitioner No. 2 could arrange for a suitable accommodation for storing the same. They were not displayed for sale. The other goods did belong to the petitioner No. 1. On the 13th October, 1961 the petitioner No. 2 made a statement claiming the ownership of the radio sets and phonographs. The petitioner No. 2 produced documents in respect of 18 transistor sets. It was stated in the show-cause notice that these documents, some of which were issued by the Customs did not show that there was anything to establish that the seized goods were the goods mentioned in the said documents. The petitioner No. 1 was asked to show cause why the goods should not be confiscated under Section 167(8) of the Sea Customs Act, read with Section 3(2) of the Imports and Exports (Control) Act, 1947 and penal action taken against them under Section 167(8) of the Sea Customs Act. In course of the explanation given, the petitioner No. 2 pointed out that excepting two the goods belonging to him were old and used for a long time and most of the pieces were broken and damaged. Even the remaining two would be between two to five years or age. Both the petitioners took the stand that the goods is were purchased by them for sale and were not smuggled goods. On the 25th April, 1962 the Assistant Collector of Customs and Superintendent Preventive Service, (the respondent No. 2 in this application) passed an order by which item Nos. 1 and 3 and electric shavers were released, but an order of confiscation was passed with regard to the remaining goods under Section 167 (8) of the Sea Customs Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947. It is against this order that this application is directed.

(2.) The only point involved in this case is as to the onus of proof. The relevant provision is Section 178A of the Sea Customs Act and it runs as follows: "178A Burden of proof

(3.) Tin's provision was inserted by the Sea Customs (Amendment) Act, 1955 which came into operation on the 7th May, 1955.