NARANDAS M KAPADIA Vs. UNION OF INDIA

JUDGEMENT

(1.) THIS appeal arises out of a judgment and order of Mr. Justice Chittotosh Mukherjee dated 4th of October, 1972. By the aforesaid judgment the learned Judge has dismissed the application under Article 226 of the Constitution and discharged the rule nisi. There were two petitioners in the application under Article 226 of the Constitution. They are the appellants to this appeal. The appellant No.1 at all material times carried on business in buying and selling watches, watch parts and watch straps at a shop at No.2, Brabourne Road, Calcutta under the name and style of Messrs. New Rex Watch Company. The said appellant is the sole proprietor of the said business. The appellant No.2 is the son of appellant No.1 and it is alleged he used to assist the appellant No1 in the said business. On 23rd of September, 1968 the said shop of the appellant No.1 was raided and searched by the customs authorities on the authority of a search authorisation issued by the Assistant Collector of Customs being respondent No.4 herein. The customs authorities seized 58 pieces of wrist watches, the original bill and invoices relating to the same, the books of account and the Indian Currency amounting to Rs. 13,000/ - from the said shop. The said seizure was made on the alleged belief that the said goods were smuggled goods and the amount of money represented the sale proceeds of smuggled goods. On the same date the residence of the appellants was raided by customs authorities and there was a search. The customs authorities seized one binocular, one ladies wrist watch and Indian Currency amounting to Rs. 1,14,900/ - several books of account and other files. The appellant No, 1 had also a locker at the Oriental Bank of Commerce at No.25, Brabourne Road, Calcutta in his own name and another locker in the Dena Bank in the Ashutosh Mukherjee Road, Calcutta in the joint names of the appellants Nos.1 and 2. The said lockers were first sealed and then on the 7th of December, 1969, 59 pieces of wrist watches were seized from the Oriental Bank of Commerce. In this appeal the appellants challenged the validity of the said seizure of the goods from the locker on 7th of December, 1968 as well as the show cause notice dated 20th of March, 1969.

(2.) THE first challenge is to the seizure of 59 pieces of wrist watches from the said locker at the Oriental Bank of Commerce. The appellants contend that the officer seizing the said goods was not or could not have been satisfied that the said goods were smuggled goods. Sub -section (1) of Section 110 of The Customs Act, 1962 enjoins that if the proper officer has reason to believe that any goods are liable to confiscation under the Customs Act, 1962 he may seize such goods. The proviso to the said sub -section stipulates that where it is not practicable to seize any such goods the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of the said officer. Section 111 of the Customs Act, 1962 deals with the confiscation of improperly imported goods. If the goods are smuggled or improperly imported the same are liable to confiscation. Therefore, to seize the goods the officer concerned must have reason to believe that the said goods are imporperly imported. It is, therefore, necessary, when a challenge is thrown to find out whether the officer concerned has in fact formed the belief and secondly, whether there were materials, relevant or germane upon which the authority concerned could have formed the belief. If there are some material upon which such belief could have been formed, the court is not concerned with the propriety of the belief or the sufficiency of the material. The above position is well settled by several decisions of the Supreme Court. Reference in this connection may be made to the decision of the Supreme Court in the case of M.A. Rasheed v. State of Kerala, AIR 1974 SC 2249, Barium Chemical v. Company Law Board, AIR 1967 SC 295, and Calcutta Discount Co. Ltd. v. Income -tax Officer 41 ITR 191: (AIR 1961 SC 372). In the seizure list the officer concerned has noted as follows. "The locker was broken open by a mechanic of M/s. Godrej Boyees Ltd., on requisition made by the Bank at the instance of Customs Deptt. in presence of the Bank's Representative as the owner of the locker failed to turn up in spite of repeated requests made in writing by the Bank authorities as well as by the Customs Authorities. As no documents covering the wrist watches were produced or forthcoming, they were seized on the reasonable belief that those are of smuggled origin or acquired possession illegally and are liable to confiscation under the provisions of the Customs Act, 1962."

(3.) THEREFORE , in the instant case it is apparent that the proper officer had formed the reasonable belief. The next question is whether there were any material relevant or germane upon which he could have formed the belief. Learned advocate for the appellants contended that there was no affidavit in answer to the rule nisi by the officer seizing the goods. He submitted that the allegation of the appellants that there were no material for the formation of the belief remained uncontradicted. When a challenge of this nature is thrown it is desirable that the person who has personal knowledge should place before the court facts upon which proper adjudication becomes possible. In this case, however, in the seizure list the officer concerned has stated the ground upon which he has seized the goods. Perhaps because there was nothing further to be stated that the officer concerned has not made any affidavit. It is indisputable in this case that wrist watches were foreign made therefore those were imported wrist watches. The appellant No.1 carries on the business of selling wrist watches. Therefore, it was expected that he would have material or document to indicate his lawful possession of the wrist watches. He was called upon to produce such documents. He failed to do so. In the above background if the officer concerned forms the belief that the goods in question were smuggled goods, in our opinion, it cannot be said that he has acted unreasonably or that he has acted without any relevant or valid material. It is not in every case that the absence of any explanation regarding the possession of goods that there would be a presumption that the goods in question are smuggled goods. The belief whether certain goods are smuggled goods or not must depend upon the facts and circumstances of the case. In the background of the facts and circumstances of the case, in our opinion, it cannot be said that there were no materials upon which the officer concerned could have acted in the belief as he did. In the aforesaid view of the matter we are unable to sustain the challenge to the seizure.