The burden of proving that goods are not smuggled lies on the prosecution unless there is a valid statutory provision shifting the burden to the accused. Section 178A of the Sea Customs Act shifts the burden of proof to the person from whose possession smuggled goods are seized, but this provision applies only to goods seized under the Act, and not to goods seized under other provisions of law.

Judgment

AYYANGAR, J. : The three appellants were convicted by the First Class Magistrate of Jullundur of an offence under S. 167 (81) of the Sea Customs Act for "having acquired possession of smuggled gold and for carrying, keeping and concealing the said gold with intent to defraud the Government knowing that the gold had been smuggled into India from a foreign country and that no duty had been paid thereon," and were sentenced to terms of imprisonment. Appeals were filed by the accused to the Sessions Judge, Jullundur but the convictions were upheld though the sentence was, reduced in the case of the third appellant. A revision petition preferred therefrom to the High Court of Punjab was dismissed and thereafter the appellants obtained leave from this Court under Art, 136 of the Constitution and flied the appeal which is now before us.

2. A few facts are necessary to be stated to appreciate the point raised for decision. The City Inspector of Police, Jullundur is stated to have received information that some smugglers were on the point of transporting gold from Amritsar into Jullundur and at about mid-night on July 16, 1958, further information that some of these had actually come and were present in the house of Gian Chand the first appellant. A raid-party was accordingly organised and the house of the first appellant was cordoned and raided at about 3 a.m. on the early morning of July 17, 1958. In the course of the search certain bars of gold were found on the person of some of the inmates of the house and in the house itself, as also a large amount of cash. Thereafter the first appellant, his wife-the third appellant and her brother-the second appellant were arrested, the gold found was seized and a complaint filed charging the three accused of offences under Ss. 411 and 414 of the Indian Penal Code. This charge of receiving stolen property preferred against the three appellants was, however, not proceeded with and the Police Inspector made a report to the Court on January 7, 1959, that no case had been made out against them, and the case was thereupon dropped. Meanwhile, the Assistant Collector of Customs contacted the City Police at Jullundur and made an application to the Court of the First Class Magistrate, Jullundur for the delivery of these gold-bars to the Customs authorities obviously under S. 180 of the Sea Customs Act to the terms of which we shall refer later, and they were delivered to the Customs authorities on January 7, 1959, this being the date on which the case against the appellants under Ss. 411 and 414 of the Indian Penal Code was dismissed.

3. Very soon thereafter a notice was issued to the appellants to show cause why the gold in the possession of the Customs authorities should not be confiscated under S. 167 (8) of the Sea Customs Act, and after considering the explanations of the appellants the Collector passed an order directing the confiscation of the gold. That order has become final and this appeal is not concerned with the correctness of the order of confiscation of the gold under S. 167(8).

4. During the proceedings before the Customs authorities for confiscation, sanction was accorded to prosecute the appellants for an offence under S. 147(81) Which runs in these terms:

"167. The offences mentioned in the first column of the following schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively:-

Offences Section of this Act to which offence has reference. Penalties

If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a ware-house or which are chargeable with a duty whi