Section 123 of the Customs Act, 1962 applies only to specified goods and does not have a general application, shifting the burden of proof onto the prosecution for non-notified goods.

( 1 ) A point that has been urged by Mr. Kalyan Bandhopadhyay in this case is that whether section 123 of the Customs Act, 1962 could be attracted in respect of non-notified goods shifting the initial burden on the person claiming to be the owner or from whom the goods were seized to undertake establishing a negative proof that the goods were not smuggled.

( 2 ) LEARNED Counsel for the respondent, however, opposes the said contention on the ground that the application of section 123 is limited to the goods notified and those mentioned in sub-section (2 ). He relied on the decisions in Radha kishan Bhatia vs. Union of India and Ors. , AIR 1965 SC 1072 and Gian Chand and Ors. vs. State of Punjab, 1983 ELT 1365 (SC), to support his contention.

( 3 ) THE context of section 123 would be the answer to the question. We need not search elsewhere. We may quote section 123 beneficially hereafter :"123. Burden of proof in certain cases.-[ (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, (i) on the person from whose possession the goods were seized; and (ii)if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. ] (2) This section shall apply to gold [and manufactures thereof,] watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify. "56 Commr. of Customs (Preventive) W. B. , Kolkata vs. Sudhir Saha 2004 (4)CHN

( 4 ) THE provision relates to the burden of proof in certain cases, therefore, it cannot have a general application and the opening sentence begins with the phrase "where any goods to which this section applies". Therefore, it relates to goods to which the section applies; and the section is made applicable by reason of sub-section (2) to gold [and manufactures thereof] watches and any other class of goods that may be specified by the Central Government by notification in the Official Gazette. Therefore, section 123, which is a departure from the normal rule of evidence, is applicable only in respect of certain cases where section 123, applies which has no general application. Under the rules of evidence one cannot be called upon to establish a negative proof. Burden always lies upon him who alleges a particular fact. Particularly when the provision is penal in nature, the burden lies on the prosecution. Section 123 curbs out exception to the general rule of evidence and creates a special rule applicable to the cases contemplated under sub-section (2) viz: gold and manufactures thereof and notified goods. Section 123 does not apply to non-notified goods in respect whereof the general rule of evidence is to be followed.

( 5 ) IN the present case, admittedly beetle-nuts seized is not a notified goods under section 123. Therefore, section 123 cannot be attracted to the goods seized in the present case on account of its being non-notified. Section 123 applies only in respect of goods, which are smuggled goods and smuggled goods means something suggesting their foreign origin and their recent importation from abroad as was held in Shanti Lal Mehta vs. Union of India, 1983 (14) ELT 1715. In the present case, goods are of foreign origin, which is an admitted fact. Though allegedly the owner had admitted the goods to be smuggled but ultimately he retracted his statement, therefore, in such circumstances, the burden of proof lies on the department as was held in Santosh Gupta vs. Union of India, 1990 (48) ELT 210:1991 (33) ECR 380.

( 6 ) HOWEVER, the decision in Gian Chand (supra) deals with a different subject which has no manner of application in the present