The main legal point established in the judgment is that the illegality of a search does not invalidate the seizure of articles or the subsequent trial, as confirmed by previous Supreme Court decisions.

S.K. Kader, J.

1. The important question that arises for determination in this criminal appeal, filed by the Assistant Collector of Central Excise, is whether the illegality of a search conducted under S.105 of the Customs Act, 52 of 1962, hereinafter referred to as the Act, will vitiate the seizure of the articles and the consequent trial of the case.

2. On a complaint filed by the Assistant Collector of Central Excise of the Integrated Divisional Office, Trivandrum, ten accused, including the respondents herein-who are respectively accuses Nos. 1, 2 to 4 and 9, were tried by the Additional Judicial Magistrate of the Fist Class, Trivandrum, for an offence punishable under S.135 of the Act, on the allegation that they acquired possession of the following articles of foreign origin, viz., (1) Cabin--All 8' Cinema Projector. 81. No. 128323 (Made in Japan; (2) Car Cassette stereo player kasuga Model K.C. 9316 (Made in Japan; (3) Cassette car stereo with AM. Radio Model No. NR. 201A SI. No. 0397 2. F. Made in Japan; and (4) Two motor cycles Suzuki Made in Japan, with the knowledge that these articles are liable for confiscation under S.111 of the Act. It was in the course of a search conducted in the house of accused Nos. 2 and 3 on 24-2-1975 between 2.30 and 3-30 p.m. by PW-1, Superintendent of Central Excise and other officers that articles Nos. 1 to 3 described above were recovered. The sons of accused Nos. 2 and 3 were present at the time of the search, and, when questioned about the contraband articles secreted in the house C they produced the above said articles which were seized under a mahazar, Ext. P1, attested by witnesses, on the reasonable belief that they were liable for confiscation under S.111 of the Act. Ext. P2, the statement of Joseph Gladstone, one of the sons present, was recorded. On the same day PW-7, Superintendent of Central Excise, searched the house of accused No. 4 in the presence of accused No. 4 and recovered the motor cycles described as item No. 4, from a thatched shed on the western side of the house. The motor cycles were seized under a mahazar, Ext. P8, attested by accused No. 4 and others. The statement of accused No 4, was recorded by PW-1. PW-1 questioned accused Nos. 1, 2 and 3 and recorded their statements Ext. P4 is the statement given by accused No. 1. Ext. P3 is the statement of accused No. 4, Ext. P5 is the statement of Accused No. 3 and Ext. P6 the statement of accused No. 2. Accused No. 9, who is the brother of accused No. 1, also was questioned by PW-1, who recorded his statement, Ext. P7.

3. Accused Nos. 5 to 8 and 10 were absconding and therefore the case against them was split up and the case against the remaining accused were proceeded with.

4. The plea of the accused persons were one of complete denial and they had no witness to be examined, although Exts. D1 to D3 were marked on their side.

5. The learned Magistrate, holding that the search conducted was illegal as the prosecution failed to produce the authorisation issued by the Assistant Collector and in view of the fact that the search was illegal the presumption under S.123 of the Act will not apply to the case, acquitted the accused.

6. This order of acquittal is strongly-assailed by the learned Additional Central Government Standing Counsel appearing for the appellant on the ground that the trial Court seriously erred in overlooking the fact that under S.152(b) of the Act any power exercisable by an Assistant Collector of Customs under the Act is exercisable also by a gazetted officer of Customs empowered in this behalf by the Board, that the Board has already issued a notification in the gazette empowering all gazetted officers of Customs to exercise any power exercisable by any Assistant Collector of Customs, that even if the notification was not produced the Court should have taken judicial notice of it, and that even if, without admitting, it is assumed for the sake of argument that the search was illegal, the trial c