The Collector of Customs, Madras Vs.
Nathella Sampathu Chetty & ANR (and Connected Cases)  INSC 282 (25
AYYANGAR, N. RAJAGOPALA SINHA, BHUVNESHWAR
P.(CJ) SARKAR, A.K.
CITATION: 1962 AIR 316 1962 SCR (3) 786
CITATOR INFO :
R 1962 SC 496 (6) F 1962 SC1559 (2) RF 1966
SC1867 (3) R 1967 SC 737 (1,6) R 1970 SC 951 (12,13,14,15,16,17,19) R 1971 SC
454 (7) RF 1972 SC 689 (16) RF 1973 SC1461 (1709) RF 1975 SC 17 (30,31) R 1979
SC 798 (8) RF 1981 SC 873 (25) R 1982 SC 697 (15,16) RF 1989 SC 222 (3) RF 1989
SC 516 (49) R 1990 SC1480 (63) C 1991 SC 101 (45,225) RF 1992 SC 604 (50)
Smuggled Goods-Restrictions on importation of
gold Seizure of gold on reasonable belief that it was smuggled-Burden of proof
that it was not smuggled on person in possessionConstitutional validity of
enactment-Reference of statute in a second statute without incorporation-Effect
of modifications of the first statute-Foreign Exchange Regulation Act, 1947 (7
of 1947), ss. 2(f), 8(1), 23A-See Customs Act, 1878 (8 of 1878), ss. 19, 16
7(8), 1 78A, 188 Constitution of India, Arts. 14, 19(1), (f) and (g).
Under the powers conferred by s. 8(1) of the
Foreign Exchange Regulation Act, 1947, the Central Government issued a
notification on August 25, 1948, placing a ban on the importation of gold
except with the permission of the Reserve Bank. Section 23A of the Act, which
was introduced by an amendment in 1952, provided that".. the restrictions
imposed by S. 8(1).. shall be deemed to have been imposed under s. 19 of the Sea
Customs Act, 1878, and all the provisions of the Act shall have effect
accordingly.. " Section 19 of the Sea Customs Act, 1878, enabled the
Central Government, by notification, to prohibit or restrict the bringing goods
of any specified description into 787 India and, by reason of other :provisions
of that Act, goods imported in contravention of the notification issued under
s. 19 were liable to confiscation. In 1955, the Sea Customs Act, 1878, was
amended by the introduction of s. 178A in that Act, which provided, inter alia
that "where goods were seized, under that Act in the reasonable belief
that they were smuggled goods, the burden of proving that they were not
smuggled goods shall be on the person from whose possession the goods were
seized." On June 26, 1956, N, an employee of the respondent, on alighting
at the Central Station in Madras From Bombay was intercepted by a Police Head
Constable and, on a search of his clothing, four blocks of gold weighing about
a thousand tolas were found in his possession. The officers of the customs
department interrogated him and, finding that lie was unable to produce any
record for the purchase of the gold, seized from him the blocks of gold. N
admitted that he brought the gold for the respondent and enquiries were made to
verify the story narrated by him as to the source from which he obtained the
gold. Thereafter the Collector of Customs being prima facie of the view that
the gold seized had been smuggled, issued notice to the respondent to show
cause why the said gold should not be confiscated. The respondent offered his
explanation bat the Collector held that the respondent bad not discharged the
onus of proving that the gold was not smuggled, an onus which had been cast on
him by s. 178A of the Sea Customs Act, 1878, and directed the confiscation of
the gold under s. 167(8) of that Act.
The respondent challenged the legality of the
action taken by the Collector of Customs on the grounds, inter alia, (1) that
s. 178A of the Sea Customs Act, 1873, was constitutionally invalid as it was an
unreasonable restraint on the citizen's rights to hold property or to do
business guaranteed by Art. 19(1)(f) and (g) of the Constitution of India and
was not saved by cls. (5) and (6) respectively of Art. 19; (2) that s. 178A of
the Sea Customs Act which was enacted in 1955 could not be invoked in adjudicating
a contravention of a notification under the Foreign Exchange Regulation Act
inasmuch as s. 23A of the latter Act when enacted in 1952 in effect
incorporated into that Act all the relevant provisions of the Sea Customs Act
as they stood in' 1952 with the result that any subsequent amendments to the
Sea Customs Act could not affect S. 23A; and (3) that the rule as to the burden
of proof under s. 178A was not attracted to the present case because the
Customs Officer who effected the seizure did not, at the moment of seizure,
entertain a reasonable belief that the goods seized were smuggled. The
Collector of Customs besides maintaining the legality of the order of
confiscation, contended that the question raised in the case as to the
constitutional 788 validity of S. 178A of the Sea Customs Act was concluded by
the decision in Babulal Amthalal Mehta v. The Collector of Customs, Calcutta
 S.C.R. 110.
Held: (1) that Babulal Amthalal Mehta v. The
Collector of Customs, Calcutta,  S. C. R. II 10, was a decision as to the
validity of s. 178A of the Customs Act, 1878, with reference to Art. 14 of the
Constitution of India only and that the question whether the said section was
obnoxious to the rights guaranteed by Art. 19(1)(f) and (g) was not considered
by that judgment.
(2) that the object of s. 178A was the
prevention and eradication of smuggling, inter alia of gold which was widely
prevalent, and in view of the fact that without a Law in that form and with
that amplitude smuggling might not be possible of being effectively checked,
the restrictions imposed by that section being in the interests of the general
public could not be held to be violative of the rights guaranteed by Art. 19
(1) (f) and (g), though it might operate somewhat harshly on a small section of
the public. Accordingly, s. 178A does not contravene Art.
19(1)(f) and (g).
State of Madras v. V. G. Row,  S.C.R.
597, Manohar Lal v. State of Punjab,  2 S.C.R. 343 and Ram Dhan Dass v.
State of Punjab,  1 S.C.R. 852, relied
Pukhraj Champalal Jain v. D. R. Kohli, (1959)
61 Bom. T. R. 1230, approved.
M.G. Abrol v. Amichand, (1 960) 62 Bom. L. R.
Nathella Sampathu Chetty v. Collector of
Customs, Madras, A. 1.
R. 1959 Mad. 142, reversed.
(3) that a seizure to which s. 178A was
applicable was merely a preliminary to the proceedings before a quasijudicial
authority under s. 182 and that it was only when the latter authority was,
satisfied that the seizure was made "in the reasonable belief that the
goods seized were goods that had been smuggled" that the rule of evidence
laid down by s. 178A came into operation.
(4) that the wording of s. 23A of the Foreign
Exchange Regulation Act, 1947, showed that the reference in it to s.
19 of the Sea Customs Act, 1878, was merely
for rendering notifications under the named provisions of the Foreign Exchange
Regulation Act to operate as notifications under the Sea Customs Act and that
it could not have the effect of incorporating the relevant provisions of the
latter Act in the Act of 1947, and that, consequently, when a notification
issued under S. 8(1) of the Foreign Exchange Regulation Act was deemed for ail
purposes to be a notification issued under s. 19 of the 789 Sea Customs Act,
the contravention of the notification attracted to it each and every provision
of the Sea Customs Act which was in force at the date of the notification.
The, Secretary of State for India in Council
v. Hindustan Co-operative Insurance Society Ltd., (1931) L. R,. 58 1. A.
259, held inapplicable.
(5) that, in the instant case, the
circumstances present at the moment when the gold was taken by the Customs
Officer at the Central Station did tend to raise a reasonable suspicion that
the gold seized had been obtained illicitly and that this was sufficient to
constitute in the words of the statute "a reasonable belief that the goods
(gold) were smuggled."
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 408 to 410 of 1960.
Appeals from the judgment and order dated
September 11, 1958, of the Madras High Court in Writ Petition Nos. 384 of 1957
and 660 of 1958.
WITH Criminal Appeals Nos. 38, 126 and 123 of
Appeals by special leave from the judgments
orders dated May 16, 1958, June 19, 1959 and April 14, 1959, of the Punjab High
Court in Criminal Revisions Nos. 290 of 1958 and 144 of 1959 and Criminal
Appeal No. 677 of 1958 respectively.
AND Civil Appeal No. 511 of 1960.
Appeal from the judgment and order dated
March 20, 1959, of the Bombay High Court (Bench) at Nagpur in Special Civil
Application No. 322 of 1958.
AND Petition No. 118 of 1958.
Petition under Art. 32 of the Constitution of
India for' enforcement of Fundamental Rights.
C. K. Daphtary, Solicitor-General of India,
H. J. Umrigar and P. M. Sen, for the appellant in 790 C. As. Nos. 408 and 409
of 1960 and respondent in C. A.
No. 410 of 1960.
N. A. Palkhivala, S. R. Vakil, R. J. Joshi.
Sohrabji, J. B. Dadachanji, S. N. Andley,
Rameshwar Nath, and P. L. Vohra, for the respondents in C. As. Nos. 408 and 409
of 60 and appellant in C. A. No. 410 of 1-960.
R. S. Narula, for the appellant in Cr. A. No.
38 of 59.
C. K. Daphtary, Solicitor-General of India,
N. S. Bindra and D. Gupta, for the respondent in Cr. A. No. 38 of 1959.
T. M. Sen, for Intervener No. 1 in Cr. A. No.
38 of 59.
K. N. Keswani, for intervener No. 2 in Cr. A.
N o. 38 of 59.
R. S. Narula and R. L. Kohli, for the
appellant in Cr. A. No. 126 of 1959.
C. K. Daphtary, Solicitor-General of India,
H. J. Umrigar and D. Gupta, for the respondent in Cr. A. No. 126 of .1959.
N. C. Chatterji, S. K. Kapur and Ganpat Rai,
for the, appellant in Cr. A. No. 126 of 1959.
A. S. Bodbe, Shankar Anand and Ganpat Rai,
for the appellant in C. A. No. 511 of 1960.
C. K. Daphtary, Solicitor-General of India,
H. J. Umrigar and T. M. Sen, for the respondent in ,C. A. No. 511 of 1960.
S. Venkatakrishnan, for the petitioner in
Petn. No. 118 of 1958.
C. K., Daphtray, Solicitor-General of India,
H. J. Umrigar and R. H. Dhebar, for the respondents in Petn. No. 118 of 1958.
1961. September 25. The Judgment of the Court
was delivered by AYYANGAR, J.-The Sea Customs Act, 1878 (Act 8 of 1378)
(referred to hereinafter as the 'Act), 791 was amended by s. 14 of Act 21 of
1955 by the introduction of s. 178A reading:
"178A. (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 on the person from whose possession the goods were seized.
(2) This section shall apply to gold, gold
manufactures, diamonds and other precious stones, cigarettes and cosmetics and
any other goods which the Central Government may, by notification in the
Official Gazette, specify in this behalf.
(3) Every notification issued under Subsection
(2) shall be laid before both Houses of Parliament as soon as may be after it
is issued." It is the constitutional validity of this section that is the
common point which arises in these several cases which have been heard
together. We have heard on the merits only Civil Appeals 408 to 410 of 1960 and
the other cases were posted before us in order that Counsel appearing for the
parties in them,. might have an opportunity to be heard upon the common
question mentioned earlier. We shall, therefore, refer only to the fact,% of
Civil Appeals 408 to 410 of 1960 in dealing with these petitions.
Civil Appeals 480 to 410:
These appeals come before us on a certificate
granted by the High Court of Madras under Arts.132(1) and 133(1)(c) of the
Constitution and are directed against the judgment and order of the High Court
in two Writ Petitions filed before it by Nathella Sampathu Chetty-the sole
proprietor of a business in gold and silver, bullion, jewellery etc. carried on
in the name of Nathella Sampathu 792 Chetty & Sons (referred to hereafter
as the respondent).
The facts giving rise to these appeals are
briefly as follows : On the morning of June 26, 1956, one Nandgopal-an employee
of the respondent-alighted at the Central station in Madras from the Bombay
Express. Nandgopal was intercepted and questioned by a Head Constable of the
State Police Service attached to the Prohibition Intelligence Department.
Nandgopal admitted that he was in possession of gold which he was bringing for
his firm-the respondent-from Bombay. The Head Constable immediately contacted
the officers of the Preventive Section of the Customs Department who were on
duty at the Central station who interrogated Nandgopal and Eeized from him four
blocks of gold weighing in all about 1,000 tolas. Enquiries were made to verify
the story narrated by Nandgopal as to the source from which he obtained the
gold and thereafter the Collector of Customs being prima facie of the view that
the gold seized had been smuggled, issued notice to the respondent to show
cause why the said gold should not be confiscated. The respondent offered his
explanation but the Collector held that the respondent had not discharged the
onus of proving that the gold was not smug led-an onus Customs Act and directed
the confiscation of the gold. The respondent thereupon filed a petition (Writ
Petition 384 of 1957) under Art. 226 of the Constitution before the High Court
of Madras for the issue of a writ of certiorari or other appropriate writ for
quashing the order of the Collector of Customs on various grounds to which we
shall advert later, including the constitutional validity of a. 178A.
While this writ petition was pending, the
respondent filed another petition (,Writ Petition 660 of 1958) for a writ of
mandamus directing the Collector to return the gold seized and confiscated by
793 The two writ petitions were heard
together and by an order dated September 11, 1958, the learned Judges of the
High Court held, allowing Writ Petition 384 of 1957, that s. 178A of the Sea
Customs Act was void under Art. 13 of the Constitution. They further held that
even if s. 178A were valid, the condition precedent for invoking the rule as to
the burden of proof prescribed by the section had not been complied with, in
that the customs officer who effected the seizure which preceded the
adjudication did not entertain "a reasonable belief that the gold was
smuggled", with the result that the order of confiscation was invalid.
Besides, the learned Judges were also of the view that s. 178A of the Sea Customs
Act could not be invoked in adjudicating a contravention of a notification
under the Foreign Exchange Regulation Act which imposed restrictions on the
import of gold. Though on these conclusions the order of the Collector
confiscating the gold was set aside, the learned Judges held that the
respondent was not entitled to an order for the return of the gold, but only to
a direction to the Collector to hear and determine the question about the gold
seized being smuggled gold without reference to the rule as to onus of proof
enacted by s. 178A. The appellant, the Collector of Customs, Madras, obtained
leave from the High Court under Arts. 132 and 133 of the Constitution, to
appeal to this Court against the orders in writ petition No. 384 of 1957 and No.
660 of 1958 (Civil Appeals 408 and 409) and a similar order was passed in an
application for a certificate by the respondent who felt aggrieved by the
refusal of the Court in Writ petition No. 660 of 1958 to direct an immediate
return of the gold seized (Civil Appeal 410). The three appeals have been
consolidated as they arise out of the same transaction.
We shall first take up for consideration
Civil Appeals 408 and 409 of 1960 filed by the Collector of Customs, because
unless those appeals fail there would be no need to decide the relief to which
the 794 respondent would be entitled in Civil Appeal 410 of 1960. In order to
appreciate the contentions, raised, it would be necessary to set out the
statutory provisions which form the background of the impugned provision s.
178A of the Sea Customs Act. The Foreign Exchange Regulation Act, 1947 (Act' 7
of 1947), was brought into force on March 25, 1947, by a notification issued by
the Central Government under s. 1(3) of that Act. The preamble to the Act
"It is expedient in the economic and
financial interests of India to provide for the regulation of...... the import
and export of currency and bullion." Section 8 of this Act refers to the
import of gold the commodity with which these appeals are concerned. It enacts:
"8(1). The Central Government may, by
notification in the official Gazette, order that subject to such exemptions, if
any, as may be contained in the notification, no person shall except with the
general or special permission of the Reserve Bank and on payment of the fee, if
any, prescribed bring or send into India any gold or silver or any currency
notes or bank notes or coin whether Indian or foreign, Explanation.-The bringing
or sending into any port or place in India of any such article as aforesaid
intended to be taken out of India without being removed from the ship of
conveyance in which it is being carried shall nonetheless be deemed to be a
bringing, or as the case may be sending, into India of that article for the
purposes of this section." Gold is defined in s. 2(f) of this Act thus:
" 'gold' includes gold in the form of
Coin, whether legal tender or not, or in the form of bullion or ingot, whether
refined or 'not and 795 Jewellery or articles made wholly or. mainly of
gold." These provisions have to be read in conjunction with the provisions
of the Sea Customs Act which form, as it were, integrated provisions in
relation to the import and export of, among other commodities, gold, ands. 23A
of the Foreign Exchange Regulation Act which was introduced by an amendment of
1952 effects this co-ordination. This section reads:
"23A. Without prejudice to the
provisions of section 23 or to any other provision contained in this Act the
restrictions imposed by subsections (1) and (2) of section 8, subsection (1) of
section 12 and clause (a) of sub-section (1) of section 13 shall be deemed to
have been imposed under section 19 of the Sea Customs
Act, 1878, and all the provisions of that Act shall have effect. accordingly,
except that section 183 thereof shall have effect as if for the word shall'
therein the word "may' were substituted. " Turning now to the Sea
Customs Act. s. 167(8) enacts"167. The offenses 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 offenses respectively:
Section of this Act to Offenses which off Penalties
emcee has reference.
8. If any goods, 18 & 19 Such goods the
importation of shall be liable which is for the to confiscation;
time being prohiand bited or restricted 796
by or under Chapter any person concerned IV of this Act, be in any such offence
imported into or shall be liable to a exported from India penalty not exceeding
Contrary to such three times the value prohibition or resof the goods, or not t;
or exceeding one thousand rupees.
if any attempt be made so to import or export
any such goods; or if any such goods be found in any package produced to any
officer of Customs as containing no such goods; or if any such goods or any
dutiable goods, be found either before or after landing or shipment to have
been concealed in any manner on board of any vessel within the limits of any
port in India; or if any goods, the exportation of which is prohibited or
restricted as aforesaid, be brought to any wharf in order to be put on board of
any vessel for exportation contrary to such prohibition or restriction, 797
Section 19 referred to here reads "19. The Central Government may from
time to time, by notification in the Official Gazette, prohibit or restrict the
bringing or taking by sea or by land goods of any specified description into or
out of India across any customs frontier as defined by the Central
Government." The other provisions which have a bearing upon the points
arising for discussion with reference to the validity of the impugned s. 178A
of the Sea Customs Act are :
"s. 178. Any thing liable to
confiscation under this Act may be seized in any place, in India either upon
land or water, or within the Indian Customs waters, by any officer of Customs
or other person duly employed for the prevention of smuggling." "Is.
181. When anything is seized, or any person is arrested, under this Act, the
officer or other person making such seizure or arrest shall, on demand of the
person in charge of the thing so seized, or of the person so arrested, give him
a statement in writing of the reason for such seizure or arrest." "s.
182. In every case, except the cases mentioned in section 167, Nos. 26, 72 and
74 to 76, both inclusive, in which, under this Act, anything is liable to confiscation
or to increased rates of duty;
or any person is liable to penalty, such
confiscation, increased rate of duty or penalty may be adjudged(a) without
limit, by a Deputy Commissioner or Deputy Collector of Customs, or a Customs collector;
(b) up to confiscation of goods not exceeding
two hundred and fifty rupees in value and imposition of penalty or increased
798 duty, not exceeding one hundred rupees, by an Assistant Commissioner or
Assistant Collector of Customs;
(c) up to confiscation of goods not exceeding
fifty rupees in value, and imposition of penalty or increased duty not
exceeding ten rupees, by such, other subordinate officers of customs as the
Chief Customs-authority may, from time to time, empower in that half in virtue
of their office:
Provided that the Chief Customs authority
may, in the case of any officer performing the duties of a Customs-collector,
limit his powers to those indicated in clause (b) or in clause (c) of this
section, and may confer on any officer, by name or in virtue of his office, the
powers indicated in clauses (a), (b) or (c) of this section." "183.
Whenever confiscation is authorized by this Act, the officer adjudging it shall
give the owner of the goods an option to pay in lieu of confiscation such fine
as the officer thinks fit." Immediately the Foreign Exchange Regulation
Act came into force in March, 1947, a notification was issued on March 25.,
1947, under s. 8(1) placing a ban on the importation of gold except with the
permission of the Reserve Bank. This notification was superseded and replaced
by a fresh one dated August 25, 1948, also issued under the powers conferred by
sub-s. (1) of s. 8 of the Foreign Exchange Regulation Act and this is the
notification which continues in force up to this date and which is relevant to
the proceedings against the respondent. The notification ran:
"(1) Restrictions on import of gold and
silver.In 1 exercise of the powers conferred by 799 sub-s. 1 of s. 8 of the
Foreign Exchange Regulation Act, 1947 (Act 7 of 1947) and in supersession of
the notification of the Government of India in the late Finance Department No.
12(11) FI/47, dated the 25th March 1947, the Central Government is pleased to
direct that except with the general or special permission of the Reserve Bank,
no person shall bring or send into India from any place outside India(a) any
gold coin, gold bullion, gold sheets or gold ingot whether refined or not; or
(b) any silver bullion............
It would be noticed that on the law as it
stood upto 1952 before s. 23A was inserted in the Foreign Exchange Regulation
Act, the importation of gold in contravention of the notification of August
1948 issued under s. 8(1) of the Foreign Exchange Regulation Act would have
been an importation contrary to s. 19 of the Sea Customs Act, with the result
that any person concerned in the act of importation would have been liable to
the penalties ,specified in the third column of s. 167(8) and the imported gold
would have been liable to confiscation under the opening words of that column.
The gold being "a thing" liable to confiscation could have been
seized by any officer of the Customs under s. 178 of the Sea Customs Act with
an obligation on the officer effecting the seizure to give to the person from
whom the gold was seized a "statement in writing of the reason for such
seizure" (s. 181).
Thereafter the officers specified in s. 182
would have adjudged the confiscation of these goods subject to the option
mentioned in s. 183 with the modification to this provision enacted by s. 23A
of the Foreign Exchange Regulation Act. It would further be manifest that at
that date before the gold seized was liable to be dealt with under the third,
column of a.. 167(8) by 800 an officer adjudicating on the matter under s. 182,
the burden of proving that the gold was smuggled lay upon the department and
unless the adjudging officer who was acting quasi-judicially was reasonably
satisfied on that point, the confiscation or the imposition of the penalty
could not have been ordered.
The effect of the imposition of the severe
restrictions on the import of gold into this country by the notifications under
the Foreign Exchange Regulation Act with a view to defend and conserve the
economy of the country in conjunction with the circumstance that the internal
production of gold was very little, resulted in a great disparity between the
price of gold in India and outside India i.e., in the international markets.
This naturally gave a great incentive to smuggling which besides depriving the
State of its revenue, also posed a grave threat to national economy. It is only
necessary to add that gold was not the only commodity which gave rise to this
problem. But as these appeals are concerned with gold, we are confining our
examination to that article. Taking these matters into account the Taxation
Enquiry Commission, which submitted its report to the Government of India in
1954, recommended a tightening of the law in order effectively to prevent
smuggling. After dealing with the administrative problems in regard to the levy
and enforcement of Customs duties in Ch. VII of the report the Committee
recommended inter alia the amendment of the Sea Customs Act so as"(1) to
make smuggling a criminal offence, and (2) to transfer the onus of proof in
respect of offenses relating to smuggling to the person in whose possession any
dutiable, restricted or prohibited goods are found." In pursuance of these
recommendations the Sea Customs Act was mended by Act 21 of 1955 and 801 among
others s. 178A whose terms we have set out, was introduced into it.
As the question of the constitutionality of
s. 178A has been the subject of elaborate consideration in a few decided cases
to which reference was made during the arguments. we consider that it would be
convenient if we deal with them before setting out and discussing teh precise
grounds on which the challenge to the validity of the provision was rested
Very soon after a. 178A was enacted its
constitutional validity was challenged by an original petition filed in this
Court (Petition 98 of 1956)Babulal Amthalal Mehta v. The Collector of Customs)
Calcutta (1).The goods involved in the case were diamonds. Four hundred and
seventy-five diamond pieces which had been seized from the petitioner, were
directed to be confiscated holding them to be smuggled, by the application of
the burden of proof laid down in is.
178A. The validity of the confiscation was
challenged before this Court on the ground that 3. 178A was unconstitutional as
being violative of Art.14 of the Constitution and the contention was rejected.
It has been urged by the learned Solicitor-General, for the appellant, that the
points regarding the constitutional validity of B.
178A raised in the present appeal are
concluded in his favour by this judgment. We shall, therefore, have to examine
the exact scone of this decision in detail which we shall do later, but for the
present it is sufficient to state that the case dealt mainly with an objection
based on a violation of Art. 14 of the Constitution which the following extract
from the head note would indicate:
"Section 118A of the Sea Customs Act
which places the burden of proving that any of the goods mentioned in the
section and reasonably believed to be smuggled are not really so on the person
from whose possession (1)  S.C.R. 1110.
802 they are_ seized, is nor,, discriminative
in character and does not violate equal protection of law guaranteed by Art.14
of the Constitution".
The validity of the section was next attacked
before. the High Court of Bombay in a Writ Petition filed under Art. 226 of the
Constitution on the ground that it violated Art.
19(1)(f) and (g) of the Constitution-. M. G.
Abrol v. Amichand(1). The article involved, in that case was gold which had
been seized from the petitioner and directed to be confiscated by an
adjudicating officer under s. 182 of the Sea Customs Act. The case came up for
hearing before K. T.
Desai, J., and the learned Judge held that S.
178A was unconstitutional as being an unreasonable restriction on the citizens'
right to hold property and to trade and also that even assuming the provision
to be constitutionally valid, the requirements of the section had, not been
complied with in the case before him inasmuch as the seizing officer had not at
the moment of seizure, "reasonable belief that the gold seized was
smuggled". The next decision in order of date is that of the Bench of the
Madras High Court dated March 11, 1957, which is now under appeal before us in
Civil Appeals 408 to 410 of 1960. The reasoning of the learned Judges of the
Madras High Court is on the same lines as that of K.T. Desai, J., in the judgment
just now referred'.
Subsequently the Nagpur Bench of the Bombay
High Court had to consider the same question and their decision is reported in
Pukhraj Champalal Jain v. D. R. Kohli (2). There the learned Judges dissented
from the decision of K. T. Desai, J., in M. G. Abrol v. Amichand (1) and of the
Madras High Court in Nathella Sampathu Chetty v. The Collector of
Customs(&). It may be mentioned that the arguments of the learned
Solicitor-General on behalf of the appellant were in substance the reasoning on
which the decision of the Nagpur Bench rests. To complete (1) (1958) 62 Bom.
L.R. 1043 at p. 1046, (2) (1959) 61 Bow. L.R. 1230, (3) A I.R. 1959 Mad. 142,
803 the narrative it is only necessary to add that an appeal was preferred by
the Customs authorities from the decision of K.
T. Desai, J. The appeal [however was
dismissed on the ground that even if s. 178A were valid as held by that Court
previously, its terms were not attracted to the particular case, because of the
non-fulfilment of an essential condition requisite for the application of the
section [See M. G. Abrol v. Amichand (1)].
We shall now proceed to deal with the points
Urged by learned Counsel for the respondent in support of his plea that the
impugned provision violates the fundamental right to hold property under Art.
19(1)(f) and the right to carry on trade or business under Art. 19(1)(g) and
was not saved by cls. (5) & (6) respectively of Art. 19. Before we do so,
however, it is necessary to advert to the points upon which learned Judges
have, in the judgment under appeal. allowed the petition of the, respondent,
because in deciding these appeals we have necessarily to pronounce upon them
Besides holding a. 178A of the Sea Customs
Act which was called in aid by the Collector of Customs to direct the
confiscation of the gold seized to be unconstitutional and therefore void under
Art. 13, the learned Judges also upheld two further contentions urged on behalf
of the respondent in support of their petition : (1) that s. 178A was not
attracted to the determination of a question raised in relation to the
confiscation of an article imported in contravention of a notification under s.
8(1) of the Foreign Exchange Regulation Act, (2) that s. 178A required as a precondition
of its applicability, that the goods which were the subject of adjudication
must have been seized ",in the reasonable belief that they are smuggled
goods" and that in the instant case the Customs Officer effecting the
seizure did not or could not entertain such a belief. We consider it Would be
convenient if we deal with these two points after examining the constitutional
validity of s. 178A.
(1) (1960) 62 Bom. L.R. 1043.
804 Before embarking on this enquiry it is
necessary to deal with the argument of the learned Solicitor-General that every
point about the constitutional validity of s. 178A is concluded in his favour
by the judgment of this Court in Babulal Amthalal Mehta v. The Collector of Customs,
Calcutta (1). we have already extracted the head-note of the report in the
Supreme Court Reports which would appear to indicate that this Court considered
only the impact of Art. 14 of the Constitution on the provision. Nevertheless,
there are some passages in this judgment, which would be immediately referred
to on which reliance was placed by the learned Solicitor-General in support of
his contention that this judgment is an authority for the position not merely
178A does not violate Art. 14 but that it
impliedly. if not expressly decides that the restriction imposed by it on the
right to hold property or to engage in the business of dealing in gold was a
reasonable restriction within Art.
19(5) & (6) of the Constitution. We will
quote these passages in order to examine whether this contention is made out.
That judgment after setting out a summary of the provisions of the Sea Customs
Act relating to seizure, the adjudication of confiscation, the imposition of
penalties, appeals from the orders of the Customs authorities to the higher
revenue authorities and the terms of s. 178, proceeds:
"No doubt the content and import of the
section are very wide. It applies not only to the actual smuggler from whose
possession the goods are seized but also to those who came into possession of
the goods after having purchased the same after the same has passed through
many hands or agencies. For example, if the Customs authorities have a
reasonable belief that certain goods in the possession of an innocent party are
smuggled goods and the same is seized under the provisions of this Act, then
the person from whose possession (1)  S.C.R.1110.
805 the goods were seized, however innocent
he may be, has to prove that the goods are not smuggled articles. This is no
doubt a very heavy and onerous duty cast on an innocent possessor who, for
aught one knows, may have bona fide paid adequate consideration for the
purchase of the articles without knowing that the same has been smuggled. The
only prerequisite for the application of the section is the subjectivity of the
Customs officer in having a reasonable belief that the goods are
smuggled." This passage is followed by an examination of the matters with
reference to Art. 14 expressing the opinion that the petition did not show in
what manner there had been a violation of that Article, and the judgment
"But Mr. Chatterjee argues that the
burden of proof enunciated therein is opposed to fundamental principles of
natural justice, as it gives an unrestricted arbitrary and naked power to the
customs authorities without laying down any standard or norm to be followed for
exercising powers under the section......... It is a heavy burden to be laid
upon the shoulders of an innocent purchaser who might have come into possession
after the article has changed many hands and this, it is alleged, invokes
discrimination between him and other litigants and deprives him of the equal
protection of the law guaranteed by Art. 14 of the Constitution. A large number
of cases have been cited at the Bar in support of the respective contentions of
the parties." This is followed by a citation from the decisions of this
Court in which the scope and content of Art. 14 were discussed and in
particular a passage in the judgment in Budhan Chaudhury v. The State of
Bihar(1) where, the principle that Art. 14 (1)  1 S.C.R. 1045, 1048-1049.
806 does not forbid classification on a
reasonable and rational basis is extracted. The judgment proceeds:
" A cursory perusal of s. 178A will at
once disclose the well defined classification of goods based on an intelligible
It applies only to certain goods described in
sub-a. (2) which are or can be easily smuggled. The section applies. only to
those goods of the specified kind which have been seized under the Act and in
the reasonable belief that they are smuggled goods. It is only those goods
which answer the threefold description that come under the, operation of the
section. The object of the Act is to prevent, smuggling. The differentia on the
basis of which the goods have been classified and the presumption raised by the
section obviously have a rational relation to the object sought to be achieved
by the Act.................. The impugned section cannot be struck down on the
infirmity either of discrimination or illegal classification." We are
therefore satisfied that the decision of this Court considered the validity of
s. 178A only with reference to Art. 14 and that it is not a decision regarding
the -impugned legislation being or not being obnoxious to Art.
19(1)(f) & (g). It is only necessary to
add that at the beginning of the discussion, Govinda Menon, J., specifically
points out that he was not considering any attack on s. 178A based on an
infringement of Art. 19(1)(f) & (g), for 'he said :
"Though Mr. Chatterjee faintly argued
that the provisions of Art. 19(1)(f) & (g) and Art. 31 of the Constitution
had been violated, he did not seriously press those contentions. The main point
of the attack was centered on the contention that s. 178A was violative of
principles of equal protection of the laws guaranteed under Art. 14 of the
Constitution." 807 We cannot accept the further submission either that,
even if this Court did not in terms consider the validity of s. 178A with
reference to Art. 19 (1) (f) & (g), still the reasoning by which it
rejected the contention that it violated Art. 14 would be sufficient to cover
the former also. No doubt, there are situations when the points regarding a
violation of Art; 14 and an objection that a restriction is not reasonable so
as to conform to the requirements of Art.
19(5) or (6) may converge and appear merely
as presenting the same question viewed from different angles. Such, for
instance, are cases when the denial of equality before the law is based on the
ground that the power vested, say, in an administrative authority to affect
rights guaranteed to a citizen is arbitrary, being unguided or uncanalised. The
vesting of such a power would also amount to the imposition of an unreasonable
restriction on the exercise of the guaranteed right to trade or carry on a
business etc. Where however, there is guidance and the legislation is
challenged on the ground that the law with the definite guidance for which it
provides has out stepped the limits of the Constitution by imposing a restraint
which is either uncalled for or unreasonable in the circumstances, the scope
and content of the enquiry is far removed from the tests of conformity to
rational classification adopted for judging whether the law has contravened the
requirement of equal protection under Art. 14.
It is therefore necessary for us to consider
whether s. 178A is obnoxious to the rights guaranteed by Art. 19(1)(f) &
(g) which is the ground upon which the section has been held unconstitutional
by the judgment of the Madras High Court under appeal. We have already set out
what one might term the historical background and the surrounding
circumstances' which necessitated the enactment of this provision. As already
indicated, since the commodity with which the present appeals are concerned is
gold, we are referring to that in particular, though the circumstances
attendant on the 808 other commodities referred to in s. 178A might be similar.
As pointed out I already, the disparity
between the internal and external price of gold became, by 1948, so great
a" to provide considerable incentive to smuggling by making it very
profitable. This as, assisted by the very long coastline which India has,
coupled with the extensive land frontiers both on the east as well as on the
west ignoring for the moment the very small pockets of foreign territory within
the subcontinent. Notwithstanding the efforts of the Customs authorities and
the Preventive Staff of that department, a considerable volume of the yellow
metal did 'seep into the country and efforts had therefore to be made to
tighten the law in this regard. It was in pursuance of this endeavour that s.
178A was introduced into the Sea Customs Act in 1955. Ex facie, the impugned
provision enacts a rule of evidence and the ratio underlying it is not far to
seek,. and it is that the person in possession of the gold would, with
certainty in most cases, be in a better position to prove that it was legally
within the country than the Customs authorities. In this connection reference
may be made to the observations by Lord Goddard, C. J., in B. v. Fitzpatrick
(1). Speaking of s. 259 of the V. K. Customs Consolidation Act, 1876, which
enacted "If in any prosecution in respect of any goods seized for
non-payment of duties, or any other cause of forfeiture, or for the recovering
any penalty or penalties under the Customs Acts, any dispute shall &rise
whether the duties of customs have been paid in respect of such goods, or
whether the same have been lawfully imported or lawfully unshipped, or concerning
the place from whence such goods were brought, then and in every such case the
proof thereof shall be on the defendant in such prosecution." (1)  1
All. E.R. 769, 772.
809 the learned C. J. said"The onus is
put on the defendant when there is a dispute in the proceedings whether duty
has been paid or whether the goods were lawfully imported. The obvious reasons
for this provision is that the facts must be within the knowledge, and often
within the exclusive knowledge of the defendant. If, for instance, it is found
that he has dealt in prohibited goods, if he can show that he acquired them in
the ordinary course of business obviously he would not be guilty of dealing in
them with intent to avoid the prohibition. He can prove the positive and,
unless he had to undertake the proof, the Crown would generally have to
undertake the proof of a negative.
Mr. Palkivala, learned Counsel for the
respondent, stated that if the impugned section, s. 178A, had contented itself
with laying down the principle enunciated in the above observations of Goddard,
C. J., he would not contend that it was an unreasonable restraint on the
citizen's rights to hold property or on his right to do business guaranteed by
Art. 19 (1) (f) & (g). His submission, however, was that the burden cast
upon the person from whom gold were seized transcended the limits of what that
person could reasonably be called on to prove and that as the burden cast by s.
178A was impossible of being discharged, it amounted not to a law laying down a
rule of evidence, but operated virtually to effect a confiscation of the
property of a citizen without affording him any real opportunity to establish
his right to it.
To appreciate properly this argument about
the real effect of the provision it is necessary to set out a few facts
relating to gold as an article of trade in this country.
Learned Counsel on either side agreed that
the matters stated in relation to gold and the trade in gold referred to in the
following *sage in the judgment of K. T.Desai, J., 810 correctly sums up the
position. The learned Judge summarised the position thus:
"It is common knowledge that India
produces very little gold and that most of the gold available in India is
imported gold. A statement has been put in by consent showing the official
figures of India's imports and exports of gold from 1851 to 1956. it shows a
net import in the country, after deducting exports, of 353 crores and three
lakhs worth of gold. Restrictions on the import of gold were for the first time
introduced in India by Finance Department (Central Revenues) Notification No.
53, dated September 4, 1939.
By that notification the Central Government
in the exercise of the powers conferred by s.19 of the Sea Customs Act
prohibited the bringing or taking by sea or land into British India from any
place other than Burma or out of British India to any Place other than Burma
gold coin, gold bullion or gold ingots, whether refined or not, except on the
authority of a licence granted in that behalf by the Reserve Bank of India Till
April 1, 1946, gold remained duty free. Thereafter duty was levied on the
import of gold bullion, gold plate, gold manufactures etc Gold besides being a
store of value, is anarticle of adornment and investment. It is capable of
being split and there can be a fusion of diverse quantities of gold. It is
easily changeable in form size and shape. The gold available in the market
hardly bears any identification mark. It is impossible for person looking at
gold to say whether duty has been paid thereon or not or 'whether it has been
smuggled. It is precisely the difficulty experienced by the customs officers
with the whole machinery of Government at their disposal in proving that the
gold has been smuggled which is itself made a reason for throwing the burden
upon the citizens 811 to establish that the gold is not smuggled...... Gold an
such has no earmark.
It is impossible to identify gold in the
possession of a person with the gold mentioned in the Bill of Entry of any
importer of gold......... Gold has been imported through centuries into this
country and it is virtually impossible for a person to establish that any
particular quantity of gold in his possession was the gold imported in, the
country at a particular time without resort to smuggling. The proof required
presupposes the existence of gold in an identifiable form from the time of its
import to the time of its ultimate sale to the person from whose possession the
same has been seized." Mr. Palkivala, learned Counsel for the respondent,
explained to us the special features attaching to gold as a commodity and as a
store of value, and of the difficulties, if not impossibility, of identifying
one piece of gold from another in the absence of a requirement of marking, and
basing himself on this :factual position submitted six grounds in support of
his contention that the restriction imposed by s. 178 A was unreasonable and we
shall deal with these points in the same order :
(1) Section 178A, no doubt, on its face
purports to be a rule of evidence, but in reality is not so. The purpose of the
enquiry by the adjudicating officer is to find out whether the gold seized from
a person had been smuggled, and in such an enquiry the fact to be proved, viz.,
that the gold had been smuggled is statutorily established not as an inference
from. basic facts, which would indicate the smuggled character of the Gold
seized, but from the mere belief of the seizing officer that the gold seized
was smuggled, (2) It was said on the other side that the requirement in s. 178
A that the officer seizing the gold must entertain "'a reasonable
belief" that the gold was smuggled provided an adequate safeguard 812 to
the person affected which would render the restriction imposed reasonable
within cls. (5) & (6) of Art. 19.
This argument is untenable. If the reasonable
belief was a matter for the subjective satisfaction , of the seizing officer,
as seems to be implied from the observations of this Court in Babulal Amthalal
Mehta v. The Collector of Customs, Calcutta (1), it provides no safeguard at
all for the person from whom the gold is seized. Even if, on the other hand,
the test is objective, in the sense that at the stage of the adjudication under
s. 182 the grounds upon which the belief was entertained could be the subject
matter of enquiry it furnishes no safeguard either, because the
"reasonableness" of the belief regarding the smuggled character of
the gold would have to be judged by the adjudicating officer with reference to
the information which the seizing officer had at the moment of seizure, and
that information must necessarily have been obtained behind the back of the
person from whom the gold had been seized and before the officer commenced any
enquiry to ascertain the truth or otherwise of the information conveyed to him,
(3) There is no reasonable or rational connection between the fact to be
proved, viz.' that the gold was smuggled and the fact from which such an
inference is permitted to be drawn by the impugned provision, viz., the
reasonable belief of the officer effecting the seizure that the gold was
smuggled. There is therefore no adequate basis on which the provision could be
sustained as a rule of evidence, (4) The operation of s. 178A is not restricted
in point of time or to persons actually suspected to be connected with the
import but extends also to persons who are able to establish bona fide
acquisition of gold but who are unable to prove how the person from whom they acquired,
obtained the gold they sold, (1)  S.C.R. 1110.
813 (5) A presumption of this sort might be
reasonable in respect of goods which are dangerous or noxious per se, like
firearms or poison, since ordinarily people might be expected to be. on their
guard before obtaining such goods to ensure that their acquisition was lawful
and in accordance with I theformalities, if any prescribed by the relevant
statute or rule. Gold, however, is not such a type of commodity. It is, an
inncouous article of commerce and is under the law a subject of unrestricted
trade within the country. The burden of proof of the sort imposed by a. 178A,
in respect of such a commodity, is therefore unreasonable, (6) The burden of
proof cast by s. 178A is, in most cases, impossible of being discharged be
cause: (a) it extends to facts which would not be in the possession of a bona
fide purchaser and would comprise matters which he never knew, or could never
know, (b) large quantities of gold have been imported into India before
restrictions were imposed in 1939. The net imports upto 1939 are estimated at
over 353 crores of rupees which at the present price of gold would be over
2,000 crores of rupees. As gold which is sold in the market is not
identifiable, it would be impossible for any purchaser to say whether the gold
that he was 'buying was that which had been imported lawfully before 1939 or
had come into the country, after. 1939 after payment of duty or had been.
smuggled into the country in violation of the Foreign Exchange Control
Regulations. The section, therefore, practically prohibits, all holding of
gold, or trade in gold and subjects the-holding of and the trade in gold to the
penalty of confiscation, indigenous gold has been produced in mines in India
both before and after 1939 and there is nothing to differentiate this from
imported gold, (d) it is a commodity which frequently changes hands because of
regular trade and widespread 814 use as ornaments etc., and finally (e) the in dentification
of gold is impossible because of frequent melting’s and fusion of separate
pieces and the absence of any system of compulsory marking.
We shall deal with each of these points and
examine them in the light of the submissions made by the learned Solicitor General
in answer. Grounds 1 and 3 which we have set out earlier may be taken up
together since they are merely different modes of expressing the same
contention. The point raised is that there is no rational connection between
the fact from which the statute raises the presumption and the fact which has
to be proved in order that the goods might be the subject of confiscation. The
argument is that the fact from which the presumption is drawn is the reasonable
belief of the officer effecting the seizure that the article seized is
smuggled; while the fact which by the terms of the statute it is held to prove
is that the gold seized is smuggled; with the result that the practical effect
of the provision is that there is a statutory direction to the adjudicating
officer to treat the gold as smuggled so as to entitle him to confiscate the
same. It is only if learned Counsel for the respondent is right that the effect
of the section is as above that the several decisions of the American Courts to
which he invited our attention, could have any application. Learned Counsel
relied particularly on the decisions in Bailey v. State of Alabama (1), and
Manley v. State of Georgia (2). The first of these was concerned with the
validity of a law of the State of Alabama by which refusal without just cause,
to perform the labour agreed to be performed in a written contract of
employment under which the employee had obtained money which he did not refund
was made prima facie evidence of an intent to commit a fraud. The Supreme Court
held the law invalid.
Two grounds were urged in support of the
argument that the legislation was unconstitutional. The first was that (1)
(1911) 219 U. S. 219 : 55 L. Ed. 191.
(2) (1929) 279 U. S. 173 L. Ed; 5 5.
815 it was in violation of the 13th amendment
against "involuntary servitude except as punishment for crime", the
other that the law was in violation of due 'Process' clause contained in the
14th amendment The Supreme Court upheld both these contentions, but what is
relevant to the present context and on which learned Counsel relied was the
reason assigned for holding that the rule of evidence enacted by the impugned
statute violated the requirement of due 'process'. Reliance was placed for the
State before the Supreme Court on the fact that the presumption raised was not
conclusive but was open to rebuttal by the accused, but this was held not to be
of avail, because according to the rule of evidence enforced by the Courts of
Alabama, the accused, for the purpose of rebutting the statutory presumption,
was not allowed to testify as to his un-communicated motives, purposes or
intentions, so that virtually it amounted to a conclusive presumption against
the accused. The statute whose validity was attacked in the second American
decision referred to was one declaring that every insolvency of a bank shall be
deemed fraudulent and subjected the directors to imprisonment unless they
repelled the presumption of fraud by showing that the affairs of the bank had
been fairly and legally administered. Head Note 1 to this case sums up the
American law on the subject of the constitutional validity with reference to
the due 'process' clause, of laws of evidence creating presumptions. It runs:
"1. State legislation that proof of one
fact, or group of facts, shall constitute prima facie evidence of the main or
ultimate fact in issue, does not constitute a denial of due process of law if
there is a rational connection between what is proof and what is to be
inferred, and the presumption is not unreasonable, and is not made conclusive
of the rights of the person against whom it is raised." 116 In regard to
the American decisions of which only a few were cited, including those just now
get out, the principle underlying them is to be found summarized in
Rottschaefer's Constitutional Law at p. 835, where the learned author says:
"The power of a legislature to prescribe
the rules of evidence is universally recognised, but it is equally well
established that due process limits it in this matter. It may establish
rebuttable presumptions only if there is a rational connection between what is
proved and what is permitted to be inferred therefrom." It would be seen
that the decisions proceed on the application of the 'due process" clause
of the American Constitution. Though the tests of ,reasonableness' laid down by
cls. (2) to (6) of Art. 19 might in great part coincide with that for judging
of 'due process', it must not be assumed that these are identical, for it has
to be borne in mind that the Constitution framers deliberately avoided in this
context the use of the expression due process' with its comprehensiveness,
flexibility and attendant vagueness, in favour of a somewhat more definite word
"'reasonable", and caution has, therefore to be exercised before the
literal application of American decisions. In making these observations we are.
merely repeating a warning found in the judgment of this Court in A. S. Krishna
v. The State of Madras (1), where Venkatarama Ayyar, J., speaking with
reference to the point now under discussion after quoting the passage already
extracted from Rottschaefer's treatise stated:
"The law would thus appear to be based
on the due process clause, and it is extremely doubtful whether it can have
application under our Constitution." With this caution we shall proceed to
examine the submission of learned Counsel regarding the (1)  S.C.R. 399,
817 absence of any rational connection
between the fact to be proved and the fact on which the presumption is raised.
An analysis of the arguments of the learned Counsel shows that the real legal
objection to the provision lay in the sixth point urged by him, viz., the
impossibility of discharging the burden of proof cast by s. 178A, which thus
virtually results in a confiscation of property without a judicial adjudication
or condemnation. Pausing here we might mention that two matters might be urged
as flowing from or as the necessary result of the impugned provision: (1) that
even a bona fide possessor of the goods might be deprived of his property
notwithstanding that there was no basis even for a suspicion that he was a
party to the smuggling or had any knowledge that the goods in his possession
were smuggled goods; and (2) that the burden cast on the possessor to prove the
negative, namely, that the gold was not smuggled cast an impossible burden upon
the person from whom the goods are seized as it virtually amounts to a
confiscation by the law without any reasonable proof before a quasijudicial
authority that the gold was smuggled. To this last, the sixth point, we shall
advert in its proper place, but what we are concerned to point out at this
stage is that apart from the point about the impossibility of discharging the
onus of proof cast by the section, there is little basis for the argument that
there is lack of any rational connection between the facts giving rise to the
presumption and the fact presumed, and to this we shall now proceed.
This question about the lack of rational
connection may be considered from two points of view. First Mr. Palkivala does
not impugn the constitutional validity of s. 106 of the Indian Evidence Act or
the legislative application of the principle underlying it to any concrete
case. It need hardly be pointed out that in every case without exception, the
possessor of the gold would be the person beat acquainted with the manner of
818 his acquisition and the circumstances attendant on or connected with that
acquisition. It was part of the learned Counsel's submission that he could not
successfully impugn the validity of a provision on the terms of s. 259 of the
U. K. Customs Consolidation Act. Recalling the decision in R. v. Fitzpatrick
(1), already referred to, we might mention that the prosecution there was for a
violation of s. 186 of the U. K. Customs Consolidation Act, 1876, which, so far
as material, was in substantially the same terms as the relevant portion of s.
167(8) of the Sea Customs Act, 1878, the essential ingredient of the offence
being indicated by the words "person concerned in dealing with goods the
import of which is prohibited or which are liable to duty with intent to
defraud His Majesty", and it was a violation of this section that
Fitzpatrick was found guilty of by the application of the rule as to onus of
proof prescribed by s. 259 extracted earlier. If in a prosecution for dealing
in smuggled goods the onus could with constitutional propriety be cast upon the
accused to prove that the goods were not smuggled, it is difficult to see any
reasonable basis for the contention that where the offence charged against a
person is not dealing in but possession of ,smuggled goods, there is a
constitutional bar on the burden being so laid.
Secondly, is learned Counsel correct in his
,submission that under a. 178A the onus is cast upon the possessor of the goods
seized by reason only of the reasonable belief of the seizing officer that the
goods seized by him are smuggled ? It is to be noted that the seizure by the
officer in the belief that the goods are smuggled does not by itself operate to
effect the confiscation or deprive the owner of his property in the goods. This
result, however, follows only on an order of an adjudicating officer who
investigates into the complaint regarding the defendant's possession of the
smuggled goods. As; we shall have occasion to point out (1)  1 All. E, R.
819 later the entire evidence in the,
possession of the seizing officer would be and has to be before the officer
adjudicating the confiscation under s. 182 of the Sea Customs Act. No doubt, on
the language of s. 178A the presumption of the goods being smuggled arises only
when the seizure is made by an officer entertaining a reasonable belief that
the goods are smuggled, and in that sense the reasonable belief of the seizing
officer is a pre-requisite for the statutory onus to arise. It is also true
that at the stage of the adjudication the reasonableness of the belief of the
officer effecting the seizure that the goods are smuggled would be the
subject-matter of investigation by the adjudicating officer. Nevertheless it is
manifest that at the stage of the adjudication (when only the rule of evidence
laid down by the section comes into operation) the very facts which led the
seizing officer to effect the seizure' as distinguished from their significance
as affording a reasonable belief for the seizing officer to hold that the goods
are smuggled are before the adjudicating officer. These facts which justified
the seizing officer to reasonably believe that the goods were smuggled would
certainly impart a rational connection between the facts on which the
presumption is raised and the fact to be proved, so that whatever other
constitutional infirmity might attach to the impugned provision, the lack of
rational connection is not one of them. It appears to us therefore that the
argument regarding the lack of rational connection has no substance. It is
derived wholly on a literal reading of s.
178 A and would not be available if the
provisions were read in the manner we have just now indicated.
The second of the grounds urged by learned
Counsel was that the requirement of s. 17 8 A that the belief of the officer
seizing the goods should rest of reasonable grounds provided no safeguard to
the citizen, as the seizing-officer who acts administratively entertains the
belief on unproved information gathered from sources which most often are not
and 820 in practice will not be possible to be disclosed to the party affected.
In connection with this point two alternative submissions were made : (1) that
the reasonable belief of the officer effecting the seizure was one entirely for
his subjective satisfaction and that this rendered the protection wholly
illusory and therefore patently unreasonable. This was advanced on the basis of
the passage in the judgment of this Court in Babulal Amthalal Mehta v. The
Collector of Customs, Calcutta (1), already extracted reading :
"the only pre-requisite for the
application of the section is the subjectivity of the Customs Officer in having
a reasonable belief that the goods are smuggled." The learned
Solicitor-General, on the other hand pointed out that this was not really part
of the decision, but was just an observation and that he would not support it.
The learned Solicitor-General submitted that a seizure to which s. 178 A was
applicable was merely a preliminary to proceedings before a quasi-judicial
authority under s. 182.
When the matter comes before the latter
authority, and anterior to that authority invoking the presumption raised by S.
178 A, it would, on the terms of the section, have to be satisfied that the
seizure was made "in the reasonable belief that the goods seized were
goods that had been smuggled". At that stage the enquiry is not and cannot
be confined as to whether the seizing officer bona fide entertained the belief,
but must necessarily extend to an examination of the grounds upon which that
belief was entertained with a view to ascertain whether the belief was
reasonable. It might be that the entirety of the evidence which conceivably in
several cases consist of information communicated by informers might not be
made available, to the person affected, but still the adjudicating-officer
would have to satisfy himself that the requirements (1)  S. C. R. 1110.
821 of s. 178 A had been complied with before
invoking the presumption laid down by that section.
Mr. Palkivala's alternative submission was
that even if test of 'reasonable belief' was not subjective but was objective,
in that the point as to whether the belief was reasonable was open to
examination by the adjudicating-officer under s. 182, still, this provided no
sufficient safeguard, because, if ",information not tested by cross
examination" could from the basis of "reasonable belief", by
applying the same tests, the adjudicating officer would and must in most cases
reach the same conclusion.
It is, no doubt, true that in some cases
there might be pieces of information on the basis of which the seizure was
effected which might not be capable of being disclosed to the affected party
because it might consist of information supplied by customs informers, but if that
information would have to stand the test of scrutiny as to credibility by an
independent officer dealing with it in a quasi-judicial capacity, it cannot be
said that the protection is illusory.
It has also to be added that at the stage of
appeal or revision from the orders of the officer adjudging confiscation under
s. 182 of the Act each successive appellate or Revisional authority has also to
address itself to this requirement.
We shall now pass on to the fourth of the
points urged by learned Counsel for the petitioner that the onus of proof is
unreasonable, in that it was not restricted in point of time or to persons
connected with the import. The point suggested may be expanded in these terms :
What the party affected has to prove is not that his acquisition has been bona
fide, which of course be might be in a position to prove and might properly be
required to prove, but that somebody else over whom he has no control and of
whose actions he would, in most cases, be completely ignorant has similarly bona
fide 822 acquired the gold without violating the law and so on until one
reached the stage of the origin of the gold which is the subject of seizure and
of adjudication before the Customs authority. It would be seen that this is
really the argument upon which the sixth of the points urged by learned Counsel
rests and therefore it will be convenient to examine the soundness of the
contention and the answers which have been made on the other side after dealing
with point No. 5.
The fifth point relates to the fact that the
presumption raised by the section is about the possession of an innocuous
article of property which under the law is the subject of unrestricted trade in
the open market as distinguished from articles which are inherently dangerous such
as firearms or Poisonous drugs, in regard to which possession and dealing are
legitimately subject to severe restrictions. Learned Counsel is, no doubt,
right in his submission that gold as a commodity is an innocuous article of
commerce, that articles made of gold have been used as part of jewellery by the
middle and upper classes from the beginning of time, that it, has served as a
store of value from ancient times and that the very large number of people in
this country are in possession of gold for the purposes just now mentioned. But
that however is not any conclusive consideration in support of the invalidity
of a law which seeks to throw the burden of establishing possession as legal
under the law, upon the possessor. It cannot be seriously disputed that in most
of the cases the possessor of the gold would certainly be in a position to
establish the mode of his acquisition (subject to the last of the points about
the burden of proof being impossible to discharge), which would more often than
not take it out of the category of smuggled gold. It is only in those cases
where reasonable suspicion exists that the gold in the possession of a person
has come into the country by illicit means, that there is power in an officer
to affect the seizure and in most 823 of the cases the innocent possessor would
be in a position to discharge the onus. It is therefore in cases where a person
is unable to prove how he got into possession of the gold found with him or
where his explanations are found to be false or unacceptable that in the large
majority of cases the section would normally be invoked. Besides these, it
would be applied also in cases where a person is able to prove that his
acquisition was bona fide but that the persons from whom he acquired or one
higher up in the series of prior owners is unable to explain satisfactorily his
possession, and it is only in these marginal or extreme cases that the onus
created by the section might be contended to be harsh and unreasonable. Learned
Counsel is, therefore, not right in suggesting that s. 178A operated, as it
were, by itself to confiscate the gold and gold ornaments in the possession of
the entire population of the country, each individual being compelled before
the restoration of the gold to him to strictly prove either that the gold was
of indigenous origin or had been imported prior to 1939, or if imported
subsequently bad either been permitted to be imported or had paid duty, if such
duty was leviable. We consider that this is not the effect of the section and
that it does not, on any reasonable construction, justify this picture of its
We shall now proceed to consider the last of
the points raised by learned Council in conjunction with point No. 4 which we
had reserved for being examined along with it.
This point learned Counsel expanded in the
The burden of proof cast by the section is or
is almost impossible of discharge, because (1) it extends to facts which would
not be in the possession of bona fide purchaser at all, facts which he never
knew and which be could never reasonably ascertain ; (2) large quantities of
gold have been imported into this country before the introduction of
restrictions on their importation by virtue of the legislation 824 brought into
force from 1939. In this context, learned Counsel relied on the several matters
set out in the passage from the judgment of K. T. Desai, J., extracted earlier
and laid particular emphasis on the fact : (a) that gold was held in myriad
forms and for diverse purposes by a sizeable portion of the population of the
country, (b) that gold in its several forms was incapable of being identified
as indigenous or imported, or if imported had paid duty or not. In view of
these circumstances he urged that to call upon any person to prove any thing
more, than that his acquisition of the gold was bona fide and without violation
of the law would be to cast an impossible burden upon the possessor. Learned
Counsel further urged that the precise reason for which the burden had been
thrown upon the possessor was because of the inability of the State to
establish before the quasi-judicial authorities acting under s. 182 reasonable
proof that the gold seized was smuggled.
He therefore submitted that if Government
with all its administrative machinery operating in several fields was unable to
lead evidence which could satisfy the, Collector of Customs that the gold
seized had an illicit origin, how could it be reasonable to expect the
individual possessor, who knew nothing beyond how he himself came by the gold,
to establish the negative, viz., that the gold in his possession had not been
smuggled but was lawfully within the country.
Before considering these submissions it is
necessary to mention one point suggested in answer by the learned Solicitor-General
which has apparently found favour with the learned Judges of the Division Bench
of the Bombay High Court in Pukhraj Champalal Jain v. D. R. Kohli(1). The point
was this: The Central Board of Revenue lad issued certain administrative instructions
as regards the manner in which the Customs Officers should regulate their
procedure before the goods are adjudged to be confiscated under the provisions
of the Sea Customs Act. These are sell-, out at p. 1240 (1) (1959) 61 Bom. L.R.
825 of the Report in 61 Bombay Law Reporter
and need not be repeated here. The learned Solicitor-General's argument was
that as the section was being administered subject to these safeguards, the provision
must be held to be a reasonable restriction within (6) of Art. 19 of the
Constitution. We are clearly of the opinion that the argument about the
relevance of this matter is incorrect and must be rejected.
This Court has held in numerous rulings, to
which it is unnecessary to refer, that the possibility of the abuse of the
powers under the provisions contained in any statute is no ground for declaring
the provision to be unreasonable or void. Commenting on a passage in the judgment
of the Court of Appeal of Northern Ireland which stated:
"If such powers are capable of being
exercised reasonably it is impossible to say that they may not also be
exercised unreasonably" and treating this as a ground for holding the
statute invalid Viscount Simonds observed in Belfast Corporation v.
O. D. Commission(1):
"It appears to me that the short answer
to this contention (and I hope its shortness will not be regarded as
disrespect) is that the validity of a measure is not to be determined by its
application to particular cases............ If it is not so exercised (i.e., if
the powers are abused) it is open to challenge and there is no need for express
provision for its challenge in the statute".
The possibility of abuse of a statute
otherwise valid does not impart to it any element of invalidity. The converse
must also follow that a statute which is otherwise, invalid as being
unreasonable cannot be saved by its being administered in a reasonable manner.
The constitutional validity of the statute would have to be determined on the
basis of its (1)  A.C. 490, 520-521 826 provisions and on the ambit of
its operation as reasonably construed. If so judged it passes the test of
reasonableness, possibility of the powers conferred being improperly used is no
ground for pronouncing the law itself invalid and similarly if the law properly
interpreted and tested in the light of the requirements set out in Part III of
the Constitution does not pass the test it cannot be pronounced valid merely
because it is administered in a manner which might not conflict with the
constitutional requirements. In saying this we are not to be understood as
laying down that a law which might operate harshly but still be
constitutionally valid should be operated always with harshness or that
reasonableness and justness ought not to guide the actual administration of
We shall now proceed to examine what in
effect is the central point in the argument of the learned Counsel for the
respondent which might be split up into two heads: (1) Under s. 178-A the
burden of proof is cast upon a person from whom the goods have been seized
which is impossible for him to discharge, with the consequence that though in
form the impugned section purports to be a rule of evidence, it is virtually a
law which per se effects confiscation in (,very ease to which it is applicable.
(2) Is such a law a reasonable restriction on the right to hold property or on
the right to carry on business within cls. (5) & (6) of Art.
19, but they may be considered together.
Section 178-A operates to cast the burden of
proof on the person from whose possession goods specified in its sub-s.
(2) are seized to establish that the goods
are not smuggled.
It must be apparent that this will include,
in several cases, persons who are concerned in and are charged with being
concerned in the act of illicit importation. In their case, as we have already
pointed out, learned Counsel admits that the onus is properly shifted and that
such a provision would be reasonable and so constitutionally valid, though
undoubtedly it might be possible for the State to prove 827 its case even
without the aid of the presumption raised by s. 178A. Again there might be some
cases where goods are seized from a person who is unable to account satisfactorily
for his ownership or possession. In such cases also we did not understand
learned counsel for the petitioner to suggest that the shifting of the burden
of proof would be unconstitutional, for surely the principle underlying s. 106
of the Evidence Act; which, it is conceded, enunciates a just and reasonable
principle would serve to sustain the validity of the impugned provision. The
two classes of cases which we have just set out would in themselves constitute
most of the cases in which suspicion or information of the type which leads to
seizure and the ensuing proceedings would occur. Section 178A however does not
exhaust those classes.
and that is the ground of complaint by the
learned Counsel, and it is precisely on this basis or for this reason that
learned Counsel contends that the entire provision is constitutionally invalid.
This analysis would show that the provisions of the section are
constitutionally valid in the sense of being reasonable restrictions on the
right to hold property or to carry on trade or business in the large percentage
of cases to which the section would apply, and.
it is only in the marginal cases already
described that, it can, with any justification, be contended that the
restriction is unreasonable. From this position, the question that arises is
whether because of the inclusion of this type of case the impugned provision
should be held to be constitutionally invalid. This has to be taken in
conjunction with what is obviously correct, that any severance of the marginal
cases and their exclusion from the operation of the provision would greatly
reduce its effectiveness and provide innumerable loop-holes for easy evasion.
It is in this context that the test for ascertaining the
"reasonableness" postulated of the restrictions in cls. (2) to (6) of
Art. 19 assumes great.
relevance and crucial importance. There are
several decisions of this Court in which the relevant 828 criteria have been
laid down but we consider it sufficient to refer to a passage in the judgment
of Patanjali Sastri, C. J., in State of Madras v. V. G. Row(,). The learned
Chief Justice said at p. 607 of the Report:
"It is important in this context, to
bear in mind that the test of reasonableness, wherever prescribed, should be
applied to each individual statute impugned, and no abstract standard, or
general pattern of reasonableness can be laid down as applicable to all cases.
The nature of the right alleged to have been
infringed, the underlying purpose of the restrictions imposed., the extent and
urgency of the evil sought to be remedied thereby, the disproportion of the
imposition, the prevailing conditions at ',-he time, should all enter into the
judicial verdict." It would be apparent that this is in line with the
great principle underlying the structure of the rights guaranteed by Art. 19,
viz., a balancing of the need for individual liberty in the matter inter alia
of the right to hold property or of the right to trade, with the need for
social control in order that the freedoms guaranteed to the individual subserve
the larger needs-moral, social, economic and political of the community and
thus ensure orderly progress towards the goal indicated by the preamble. It
would follow that the reasonableness of the restraint would have to be judged
by the magnitude of the evil which it is the purpose of the restraint to curb
The submission of the learned
Solicitor-General was that the reasonableness of the impugned provision had to
be judged in the light of the widespread smuggling in commodities like gold
which if not checked was calculated to destroy national economy and hamper
economic stability and progress, and that no (1)  S.C. R. 597, 607.
829 reasonable alternative to the provision
would achieve the desired end. In this connection he drew our attention to the
Report of the Taxation Enquiry Commission, 1953-54, which pointed out the
factual position regarding the existence of widespread smuggling in certain
commodities including inter alia gold. They stated at p. 320 of the Report:
"11. Smuggling now constitutes not only
a loophole for escaping duties but also a threat to the effective fulfilment of
the objectives of foreign trade control. The existence of foreign pockets in
the country accentuates the danger. The extent of the leakage of revenue that
takes place through this process cannot be estimated even roughly, but, we
understand, it is not unlikely that it is substantial.
Apart from its deleterious effect on
legitimate trade, it also entails the outlay of an appreciable amount of public
funds on patrol vessels along the sea coasts and permanent works along the land
border, and watch and ward staff on a generous scale. It is, there. fore,
necessary, in our opinion, that stringent measures, both legal and
administrative should be adopted with a view to minimizing the scope of this
evil." The deleterious effects of smuggling, as pointed out in the extract
from the Report, are real and it is not in dispute that the prevention and
eradication of Smuggling is a proper and legally attainable,objective and that
this is sought to be achieved by the relevant law. If therefore for the purpose
of achieving the desired objective and to ensure that the intentions of
Parliament shall not be defeated a law is enacted which operates somewhat harshly
on a small section of the public, taken in conjunction with the position that
without a law in that form and with that amplitude smuggling might not be
possible of being effectively checked, the question arises whether the law
could be held to be violative of the 830 freedom guaranteed by Art. 19(1)(f)
& (g) as imposing an unreasonable restrain. That the restrictions are in
the "interest of the general public" is beyond controversy. But is
the social good to be achieved by the legislation so disproportionately small
that on balance it could be said that it has proceeded beyond the limits of
reasonableness? We would answer this in the negative. We would only add that
there is authority for the position that "acts innocent in themselves may
be prohibited and the restrictions in that regard would be reasonable, if the
same were necessary to secure the efficient enforcement of valid provisions.
The inclusion of a reasonable margin to ensure effective enforcement will not
stamp a law otherwise valid as within legislative competence with the character
of unconstitutionality as being unreasonable" [vide Manohar Lal v. State
of Punjab (1) and Ram Dhan Dass v. State of Punjab (2) Having given the matter
our best attention we have arrived at the conclusion that the impugned
legislation has not overstepped the limits set by the Constitution and in
saying this we have adopted the test laid down in State of Madras v. V. G. ROW
(3) whose terms we have quoted at the start of this discussion.
Proceeding therefore on the basis that the
impugned provision was constitutionally valid we have still to consider two
further points on the basis of which learned Judges of the High Court upheld
the case of the respondent even on the assumption that s. 178A was
constitutionally valid. The first of these grounds was that the impugned s. 178A
which had been introduced by the Act of 1955 (Act 21 of 1955) is not attracted
to the prohibitions enacted by s. 23A of the Foreign Exchange Regulation Act.
The reasoning on 'which this conclusion was reached was that s. 23A, whose
terms we have set out, when enacted in 1952 in effect incorporated into the
provisions of the Foreign Exchange Regulation Act all the relevant provisions
of the Sea Customs Act, 1878, as that (1)  2 S. C. R. 343. (2)  1
S. C. R. 852.
(3)  S. C. R. 597, 607.
831 enactment stood in 1952, with the result
that any subsequent amendments to the Sea Customs Act did not and could not
affect, modify or enlarge the scope of the incorporated Sea Customs Act which
had become part of the Foreign Exchange Regulation Act. In support of this
conclusion the learned Judges of the High Court have relied largely on the decision
of the Privy Council in The Secretary of State for India in Council v.
Hindustan Co-operative Insurance Society Ltd.
(1). We consider that the legislation
regarding which the Privy Council rendered the decision bears no resemblance,
whatever to the matter now on hand and that the ruling in The Secretary of
State for India in Council v. Hindustan Cooperative Insurance Society Ltd. (1),
cannot therefore furnish any guidances or authority applicable to the
interpretation of s. 23A of the Foreign Exchange Regulation Act. To consider
that the decision of the Privy Council;
has any relevance to the construction of the
legal effect of the terms of s. 23A of the Foreign Exchange Regulation Act is
to ignore the distinction between a mere reference to or a citation of one
statute in another and an incorporation which in effect means the bodily
lifting of the provisions of one enactment and making it part of another so
much so that the repeal of the former leaves the latter wholly untouched. In
the case, however, of a reference or a citation of one enactment by another
without incorporation, the effect of a repeal of the one "referred
to" is that set out in s. 8(1) of the General Clauses Act:
"8. (1) Where this Act, or any Central
Act or Regulation made: after the commencement of this Act, repeals and
re-enacts., with or without modification, any provision of a former enactment,
then references in any other enactment or in any instrument to the provision so
repealed shall, unless a different (1)  L.R. 58 I.A. 259.
832 intention appears : be construed as
references to the provision so re-enacted." On the other hand, the effect
of incorporation is as stated by Brett, L. J., in Clarke v. Bradlaugh(1):
"Where a statute is incorporated, by
reference, into a second statute the repeal of the first statute by a third
does not affect the second".
This is analogous to, though not identical
with the principle embodied in s. 6A of the General Clauses Act enacted to
define the effect of repeals effected by repealing and amending Acts which runs
in these terms :
"6A. Where any Central Act or Regulation
made after the commencement of this Act repeals any enactment by which the text
of any Central Act or Regulation was amended by the express omission, insertion
or substitution of any matter, then, unless a different intention appears, the
repeal shall not affect the continuance of any such amendment made by the
enactment so repealed and in operation at the time of such repeal." We say
not identical' because in the class of cases contemplated by s. 6A of the
General Clauses Act, the function of the incorporating legislation is almost
wholly to effect the incorporation and when that is accomplished, they die as
it were a natural death which is formally effected by their repeal. In cases,
however, dealt with by Brett, L. J., the legislation from which provision,-.
are absorbed continue to retain their efficacy and usefulness and their
independent operation even after the incorporation is effected.
We consider that on the language of the
provisions in the two Acts-s. 19 of the Sea Customs Act and s. 23A of the
Foreign Exchange Regulation Act-there is no scope for any argument that there
(1) (1881) 8 Q. B. D. 63.
833 has been any incorporation of the
provisions of the earlier statute in the later. We shall repeat the terms of s.
19 of the Sea Customs Act which runs :
"19. The Central Government may from
time to time, by notification in the Official Gazette, prohibit or restrict the
bringing or taking by sea or by land goods of any specified description into or
out of India across any customs frontier as defined by the Central Government."
Section 8(1) of the Foreign Exchange Regulation Act enables similar
notifications by the Central Government in these terms:
"8. (1) The Central Government may, by
notification in the Official Gazette, order that subject to such exemptions, if
any, as may be contained in the notification, no person shall, except with the
general or special permission of the Reserve Bank and on payment of the fee, if
any, prescribed bring or send into India any gold or silver or any currency
notes or bank notes or coin whether Indian or foreign.
Explanation.-The bringing or sending into any
port or place in India of any such article as aforesaid intended to be taken
out of India without being removed from the ship or conveyance in which it is
being carried shall nonetheless be deemed to be a bringing, or as the case may
be, sending, into India of that article for the purposes of this section.
" In this situation s. 23A of the Foreign Exchange Regulation Act enacts:
"............ the restrictions imposed
by sub-section (1) of section 8 shall be deemed to have been imposed under
section 19 834 of the Sea Customs Act,, 1878, 'and all the provisions of that
Act shall have effect accordingly.............
The effect, therefore, of s. 23A is to treat
the text of the notification by the Central Government under s. 8(1) as if it
had been issued under s' 19 of the Sea Customs Act with the title and the
recital of the source of power appropriate to it by the creation of a legal
fiction. It would be obvious that in the context and on the language here
employed, if s. 19 of the Sea Customs Act were repealed there would no longer
be any legal foundation for invoking the penal provisions of the Sea Customs
Act to a contravention of a notification under s. 8(1) of the Foreign Exchange
This conclusion is reinforced by a comparison
of the usual and normal or recognized formulae generally employed to effect
incorporation, such that changes in or even repeal of the incorporated statute
is not intended per se to affect the operation of the incorporating
legislation. It is sufficient to pick out a few of the well-known formulae
employed which would indicate that normally the draftsman does not leave his
intentions in doubt. For instance, in s.
20 of 53 and 54 Vict. Ch. 70-Housing of the
Working Classes Act, 1890, the words used were, "shall,, for that purpose,
be deemed to form.
part of this Act in the same manner as if
they were enacted in the body thereof,".
In 54 and 55 Vict. Ch. 19, s. 1(3), the
language employed was "The provisions of s. 134 of the said Act (set out
in the schedule) shall apply as if they were herein reenacted." To take
more modern instancess 10 and 11 George VI Ch. 51, (the Town and Country
Planning Act, 1947), s. 44(1) enacts :
835 "Sections 19 to 30 of the Act of
1944 which provide for the disposal, and appropriation by local Planning
Authorities of land acquired or appropriated under Part I of that Act, 'for the
carrying out by such authorities of development of such land, and for other
matters arising in relation to the acquisition of land in that part shall,
except so far as repealed by this Act, be incorporated with this part of this
Act, subject to the amendments specified in the second column of the following
Schedule of this Act and of the following provision of this section".
6 & 7 Eliz. 2 Ch. 63 (the Park Lane
Improvement Act, 1958), s. 5 reads:
"The Land Clauses Act (other than the
excepted provision); so far as they are applicable for the purposes of this Act
and are Dot inconsistent with the provisions thereof, are hereby incorporated
with this Act." A comparison of the formulae with the text of s. 23A shows
that the reference in it to s. 19 of the Sea Customs Act is merely for
rendering notifications under the named provisions of the Foreign Exchange
Regulations Act to operate as notifications under the Sea Customs Act, and that
it cannot have the effect of incorporating the relevant provisions of the
earlier Act into the Act of 1947, so as to attract the rule formulated by
Brett, L. J., in Clarke v.Bradlaugh already quoted.
A close examination of the decision of the
Privy Council in The Secretary of State for India in Council v. Hindustan Cooperative
Insurance Society Ltd. (1) would show that the incorporation effected in the
statute there under consideration-the Calcutta Improvement Trust Act, 1911referred
to by their Lordship as the "Local Act" was in express terms and in
the form illustrated by 54 & 55 Vict., Ch. 19, just now referred to. The
"Local Act" in (1) (1931) L.R. 58 I.A. 259.
836 dealing with the acquisition of Land for
the purposes designated by it, made provision for the acquisition under the
Land Acquisition Act, and the provisions of the Land Act Acquisition were
subjected to numerous modifications which were set out in the Schedule, so that
in effect the "'Local Act" was held to be the enactment of a Special
Law for the acquisition ;of land for the special purpose. It was in the context
of these and several other provisions which pointed to the absorption of
certain of the provisions of the Land Acquisition Act into the "Local
Act" with vital modifications that their Lordships stated:
"But their Lordships think that there
are other and perhaps more cogent objections to this contention of the
Secretary of State, and their Lordships are not prepared to hold that the
sub-section in question, which was not enacted till 1921, can be regarded as
incorporated in the Local Act of 1911. It was not part of the Land Acquisition
Act "hen the local Act was passed, nor in adopting the provisions of the
Land Acquisition Act is there anything to suggest that the Bengal Legislature,
intended to bind themselves to any future additions which might be made to that
Act. It is at least conceivable that new provisions might have been added to
the Land Acquisition Act which would be wholly unsuitable to the local code.
Nor again, does Act XIX of 1921 contain any provision that the amendments
enacted by it are to be treated as in any, way retrospective, or are to be
regarded as affecting any other enactment than the Land Acquisition Act itself.
Their Lordships regard the local Act as doing nothing more than incorporating
certain provisions from and existing Act, and for convenience of drafting doing
so by reference to that Act, instead of setting out for itself at length the
provisions which it was desired to adopt." 837 It was for this, among
other reasons, that the Judicial Committee held that rights of appeal created
by amendments effected to the Land Acquisition Act subsequent to the enactment
of the Local Act were not attracted to the incorporated provisions in the
"Local Act". We consider that there is no analogy between the
provisions held to be incorporated in the Calcutta Improvement Trust Act 1911
dealt with by the Privy Council and s. 23A of the Foreign Exchange Regulation
Act now under discussion. We bold therefore that when a notification issued
under s. 8(1) of the Foreign Exchange Regulation Act is deemed for all purposes
to be a notification issued under S. 19 of the Sea Customs Act, the
contravention of the notification attracts to it each and every Provision of
the Sea Customs Act which is in force at the date of the notification.
The other ground upon which the learned
Judges upheld the respondent's contention that the rule as to the burden of
proof enunciated in s.178 A was not attracted to the present case was based on
the finding that the Customs Officer who effected the seizure did not, at the
moment of seizure, entertain a reasonable belief that the goods seized were
smuggled. The learned Solicitor-General who contested the correctness of this
finding did not urge that the words.
in s. 178A "in the reasonable belief that
they are smuggled goods" did not prescribe a condition precedent to the
applicability of that provision which had to be satisfied before the provision
could be invoked against the affected party. As we have already pointed out,
his further submission was that such a reasonable belief must not only be
entertained by the seizing officer and besides that the question whether the
officer had done so or not, was a matter which could objectively be determined
by the adjudicating authority acting under s. 182. And these submissions he
made, as aids to his main contention that the burden of proof 838 imposed was
reasonable. We are pointing this out because before the learned Judges of the
High Court the argument apparently advanced was that the test was the subjective
belief of the seizing officer which could only be disproved by the
establishment of circumstances in which no such belief ,could ever honestly or
reasonably be entertained based on the reference to ',the subjectivity of the
officer" in the judgment of this Court in Babulal Amthalal Metha v.
The Collector of Customs, Calcutta (1). It
was by approaching the problem even from this very narrow standpoint that the
learned Judges reached a conclusion on this part of the case favourable to the
For the decision of this point it is
necessary to canvass the facts which occurred at the moment of seizure in some
detail. As narrated at the commencement of this Judgment, Nandgopal, the second
respondent-the employee of the first respondent was intercepted first by the
Head Constable of the Madras State Prohibition Intelligence Department and his
clothing was searched and the four gold-blocks weighing about a thousand tolas
were seized by the Head Constable.
The Prohibition Crime branch has a Criminal
Investigation Department and the seized gold was handed over by the Head
Constable to the Inspector of Police Criminal Investigation Department on the
same day. It was this Inspector (C.
Rajamanickam) that forwarded the gold to the
Inspector of Customs (Special Division) with a letter in these terms "I
send herewith 1,000 (One thousand) tolas of gold in 4 (four) blocks seized from
G.Nandgopal,Clerk, M/s. Nathella Sampathu Chetty, Madras, No. 177, N. S. C.
The passenger came from Bombay to Madras in
N. Y. Bombay Mail on 26th June 1956, at 6 A. M.
He has no records (1)  S.C.R. 1110.
839 of any kind for the purchase of gold.
Hence the gold was seized and he was arrested under a mahazar.
The passenger and gold are forwarded for
further action under Customs Act." It would be seen that up to this point
there had been no seizure by an officer acting under the Sea Customs Act within
s. 178A of the Act. It has also to be noticed that Nandgopal had in his
possession admittedly no receipt of any kind for the purchase of the gold ;
further he had on him the letter addressed by the first respondent to Mathura
das Gopalakrishnayya & Co., Bullion merchants, Bombay intimating that cash
to the extent of rupees one lakh was being sent through the representative,
which obviously could not possibly remain in the possession of Nandgopal if has
story about his taking cash to that addressee and the purchase of the gold from
him were true. It was in these circumstances that the Inspector (Special
Division) Customs House recorded :
"Detained four blocks of gold said to
weigh about 1,000 tolas from Shri Nandgopal, representative of Nathella
Sampathu Chetty & Sons for further investigation".
There are two views possible of the exact
import of this note by the Customs Inspector : (1) that it was a
,,,detention" preliminary to a seizure which would be effected after the
further investigation, and (2) that which found favour with the learned Judge;
of the High Court that it was itself the seizure. In support of the first of
the above constructions attention may be drawn to the fact that the events
narrated earlier took place before 8 O'clock in the morning and that
immediately thereafter Nandgopal was taken to the Customs House and was
examined there at about 8.30 and in the course of his examination he made
several statements which were obviously incorrect and whose error was capable
of being detected then and there.
840 (1) He stated that the gold had been
bought from M/s. Mathuradas Gopalakrishnayya & Co. having paid them the sum
of rupees one lakh which was referred to in the letter seized from him, but
obviously if the gold had been purchased from that firm the letter could not
remain with Nandgopal and this discrepancy he was unable to explain at that
stage., for he said " I cannot account for the presence of this letter on
me which should have been given to the firm in Bombay". (2) Nandgopal who
spoke to having received gold and then secreted it in the inner side pockets of
his waist coat and stitched it stated, that the gold was moosa gold and it was
found that the gold seized from him was not that variety. It is really after
this statement was recorded at the Customs House that the "investigation"
began. It is therefore possible to take the view that the detention resulted in
a seizure after the statement was recorded. There was ample material at that
stage on the basis of which it could be said that a reasonable belief could be
entertained that the gold seized was smuggled.
Even taking the record of the detention in
the mahazar prepared at the Central station as "the seizure" we do
not agree with the learned Judges of the High Court that the seizing-officer
could not entertain a reasonable belief that the gold seized was smuggled. The
reasonableness of the belief has to be judged by all the circumstances
appearing at that moment. In the present case, the quantity of gold in the
possession of Nandgopal-of the value of over one lakh of rupees was certainly a
very relevant factor to be taken into account and which could be considered in
judging the matter. No doubt, such a quantity could be the subject of bona fide
purchase in the course of normal trade, particularly when the person in
possession was the representative of a' well-known firm of bullion dealers.
Put one 841 would also normally expect that
the representative would have secured a bill or voucher to evidence the
purchase. In other words: (1) it was not a case of a few trinkets of gold or
small quantity purchased for domestic or personal use but a considerable amount
for purposes of business, (2) the undelivered letter addressed to M/s.
Mathuradas Gopalakrishnayya and Co., which admittedly had a bearing upon the
purchase of gold in the possession of Nandgopal necessarily drew an amount of
suspicion on the theory of a bona fide purchase. These circumstances, in our
opinion, which were admittedly present at the moment when the gold was taken by
the Customs Officer at the Central Station did tend to raise a reasonable
suspicion that the gold seized had been obtained illicitly and this was
sufficient to constitute, in the words of the statute, 1% reasonable belief
that the goods (gold) were smuggled".
We are therefore of opinion (1) that s.178A
was constitutionally valid, (2) that the rule as to the burden of proof enacted
by that section applies to a contravention of a notification under s. 8(1) of
the Foreign Exchange Regulation Act, 1947, by virtue of its being deemed to be
a contravention of a notification under s. 19 of the Sea Customs Act, (3) that
the preliminary requirement of s. 178A that the officer seizing should
entertain "a reasonable belief that the goods seized were smuggled"
was satisfied in the present case. The result therefore is that the petitions
under Art. 226 of the Constitution filed by the respondent before the High
Court should have been dismissed.
We accordingly allow appeals 408 and 409 with
costs throughout (one set of hearing fees), the writ petitions filed by the
respondent being directed to be dismissed. In view of our decision in appeals
408 and 409, the points raised by the respondent in appeal 410 of 1960 do not
require to be decided. That appeal fails and is dismissed.
There will however, be no order as to costs.
842 Criminal Appeals No. 38 of 1959, No. 126
of 1959, No. 1.23 of 1959, Civil Appeal No. 511 of 1960 and Writ Petition No.
118 of 1958 were not heard on the merits and
we have not examined the facts of any of those cases. Those appeals and
petitions should, therefore, be posted for hearing in the usual course.
Appeals nos. 408 and 409 allowed.
Appeal no. 410 dismissed.