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1981 Supreme(Bom) 258
BOMBAY HIGH COURT
G. F. COUTO, J.
UNION OF INDIA AND ANOTHER
VERSUS
RAMNATH P. VERNEKAR AND OTHERS
Criminal Appeal No. 36 of 1978,
Decided On : 30 -9 -1981
The seizure of goods by police officers in the reasonable belief that they are smuggled is a seizure under the Customs Act, and the presumption under Section 123 of the Customs Act arises, placing the burden of proving that the goods were not smuggled on the accused.
Headnote:
CUSTOMS ACT - SEIZURE OF GOLD BARS - PRESUMPTION UNDER SECTION 123 - APPLICABILITY - SEIZURE BY POLICE OFFICERS - REASONABLE BELIEF THAT GOODS WERE SMUGGLED - BURDEN OF PROOF ON ACCUSED.
Fact of the Case:
Police officers raided the residential premises of the respondents on an information that there existed smuggled gold in the said house. A bundle of khaki cloth containing 27 gold bars was found in the possession of respondent Rohidas. The police seized the gold bars under a panchanama in the reasonable belief that the same were smuggled. Later, the gold bars were handed over to the Customs Officers under a second panchanama. The respondents were convicted by the trial court for offences punishable under Section 135(b) of the Customs Act and Section 8(i), (ii), (iii) of the Gold Control Act, 1968. On appeal, the Sessions Court acquitted the respondents of the offence punishable under Section 135 of the Customs Act, holding that the prosecution had not discharged the burden of proving that the seized gold had been smuggled into India.
Finding of the Court:
The High Court held that the seizure of the gold bars by the police officers was a seizure under the Customs Act, as they acted in the reasonable belief that the gold was smuggled. Therefore, the presumption under Section 123 of the Customs Act arose, and the burden of proving that the gold was not smuggled lay on the respondents.
Issues: Whether the presumption under Section 123 of the Customs Act arises when the seizure of goods is made by police officers in the reasonable belief that they are smuggled, even if the initial seizure is done under other provisions of law.
Ratio Decidendi: The Court held that the seizure of the gold bars by the police officers was a seizure under the Customs Act, as they acted in the reasonable belief that the gold was smuggled. Therefore, the presumption under Section 123 of the Customs Act arose, and the burden of proving that the gold was not smuggled lay on the respondents. The Court distinguished the case of Gian Chand v. State of Punjab, AIR 1962 SC 496, holding that it was not applicable to the facts of the instant case, as the seizure in that case was done under the provisions of the Cr. P.C. and not in the reasonable belief that the seized goods were smuggled.
Final Decision: The appeal was allowed, the judgment of the Sessions Judge acquitting the respondents of the offence punishable under Section 135 of the Customs Act was set aside, and the case was remanded to the Sessions Judge with a direction to reassess the evidence in the light of the observations made by the High Court.
1. This appeal by leave of this Court is directed against the order of acquittal passed by the learned Sessions Judge on 21st Nov., 1977 in Criminal Appeals Nos. 41 and 42, both of 1977.
2. Appellants herein have filed a criminal complaint against the respondents for offences punishable under Sec. 135(b) of the Customs Act and S.8(i), (ii), (iii) of the Gold Control Act, 1968 because according to the prosecution in pursuance of an information, a party of local police officers headed by a Dy. S.P. raided the residential premises of the respondents on 24-12-69 and on their entering the house, respondent Rohidas hastily removed a bundle of khaki cloth hanging on one of the walls and after sticking the same under his left armpit, began to wear a bush shirt. He was caught and then 27 gold bars with the following mark : "Johnson Matthey London - 9950 - 10 tolas" were found in the said bundle. Police seized under a panchanama the said gold bars with the reasonable belief that the same gold had been smuggled into India. Later on, the said gold bars were handed over to the Customs Officers under panchanama. The learned Chief Judicial Magistrate, who tried the case, convicted the three respondents for both the offences by his judgement dated 9th Feb., 1977. Petitioners being aggrieved by the said judgement and conviction passed by the learned Chief Judicial Magistrate, preferred appeal to the Sessions Court and the learned Sessions Judge, Panaji acquitted them of the offence punishable under S.135 of the Customs Act on the ground that the prosecution had not discharged the burden of proving that the seized gold had been smuggled into India by the respondents and further, that the onus to prove that the said gold bars had not been smuggled had shifted from the respondents to the prosecution.
3. It is against this order of acquittal that petitioners filed the present appeal after obtaining leave of this Court.
4. The only point for determination of the Court is whether or not the presumption under S.123 of the Customs Act arises in the present case.
5. It was argued before me by Mr. G.D. Kamat, learned counsel appearing for the petitioners, that the learned Sessions Judge erred whilst acquitting the respondents of the offence punishable under S.135 of the Customs Act. In fact, it is his contention that in this case the presumption under Section 123 of the Customs Act was to be applied because the gold bars had been attached from the accused persons and such attachment of seizure was done under the Act on the reasonable belief that the same were smuggled. He further submitted that the circumstance that the seizure was initially done by the police officers is irrelevant, considering that, under S.151 of the Customs Act, Police officers are duty bound to assist the customs officers for the purposes of the Act. He further brought to my notice that it is clear from the panchanama of the seizure by the police that the said seizure was done under the reasonable belief that the gold was smuggled into India and thereafter the same gold was handed over to the Customs officers under a second panchanama. In these circumstances, it is the case of Mr. Kamat that what was held in Gian Chand v. State of Punjab, AIR 1962 SC 496 : (1962 (1) Cri LJ 485) is not attracted to the facts of the instant case. Indeed, the said case of Gian Chand was interpreted by the Bombay High Court in Vasantlal Ranchhoddas Patel v. Union of India, AIR 1967 Bom 138 : (1967 Cri LJ 715).
In this case, the Bombay High Court held that the ruling of the Supreme Court above cited has to be read in the context of the facts of that particular case and it cannot be regarded as an authority for the proposition that if in officer not competent to do so, wrongfully seizes goods, they cannot subsequently be seized by a officer who is lawfully empowered to seize them. It was further held by the Bombay High Court that S.110 does not place any limitation as to the persons from whose posses
