Amba Lal Vs. The Union of India &
Ors [1960] INSC 167 (3 October 1960)
SUBBARAO, K.
SINHA, BHUVNESHWAR P.(CJ) KAPUR, J.L.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1961 AIR 264 1961 SCR (1) 933
CITATOR INFO :
RF 1971 SC 44 (38) D 1974 SC 859 (29,41,44) D
1975 SC2288 (13)
ACT:
Evidence--Customs authorities recovering
articles suspected to have been smuggled--Accused pleading articles brought
from Pakistan at time of Partition--Burden of proof--Imports Exports Control
Act, 1947(10 of 1947), s. 3--Sea Customs Act, 1878 (8 of 1878) ss. 19, 167(8)
and 178-A--Land Customs Act, 1924 (19 of 1924), ss. 5 and 7--Indian Evidence
Act, 1872 (1 of 1872), s. 106. 934
HEADNOTE:
The appellants house was searched on June 22,
1951, by the Customs authorities and ten articles were recovered there from. In
the inquiry before the Collector the appellant stated that the first five
articles had been brought by him in 1947 from Pakistan after-partition and that
with respect to the other five articles he was a bona fide purchaser thereof.
The Collector held that the appellant had failed to establish his case and held
that the goods were imported into India in contravention Of S. 3, Import Export
Control Act read with ss. 19 and 167(8), Sea Customs Act and ss. 4 and 5 Land
Customs Act read with S. 7 thereof. This decision was upheld on appeal by the
Central Board of Revenue and by the Central Government on revision.
The appellant contended that: (i) the onus of
proving that the first five articles were smuggled goods was on the department
which it had failed to discharge, and (2) even if the other five articles which
he purchased were smuggled goods he was not concerned with their importation.
Held, that the onus was on the authorities to
establish that the first five articles were imported into India after March
1948, when the customs barrier was put up for the first time between India and
Pakistan, and that the authorities having failed to adduce any evidence to
prove this fact the appellant could not be held guilty of any of the offences
charged. The onus did not shift by virtue Of S. 178A, Sea Customs Act or s. 5,
Land Customs Act, as the former section was not in operation at the relevant
time and the latter section was not applicable to the facts of this case ; nor
did the onus shift by virtue of s. 106, Evidence Act, as that section could not
be used to undermine the well established rule that the burden was on the
prosecution and never shifted.
Shambu Nath Mehra v. The State of Ajmer,
[1956] S.C.R. 199, followed.
With respect to the other five articles even
if the appellant was right in his contention that he was not concerned in their
importation he was liable to the penalty under s. 7(1)(c), Land Customs Act,
1924, for keeping the articles knowing them to be smuggled goods.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 153 of 1956.
Appeal from the judgment and order dated
November 3, 1954, of the Punjab High Court in Civil Writ No. 253-D of 1954.
Veda Vyasa, S. K. Kapur, K. K. Jain and
Ganpat Rai, for the appellant.
H. N. Sanyal, Additional Solicitor-General of
India, H. R. Khanna and T. M. Sen, for the respondents.
935 1960. October 3. The Judgment of the
Court was delivered by SUBBA RAO J.-This appeal by certificate is directed
against the order of the High Court of Judicature of the State of Punjab
dismissing the petition filed by the appellant under Art. 226 of the
Constitution.
The facts giving rise to this appeal may be
briefly stated.
The appellant is at present a resident of
Barmer in the State of Rajasthan. But before 1947 he was living in a place
which is now in Pakistan. On June 22, 1951, the Deputy Superintendent, Land
Castoms Station, Barmer, conducted a search of the appellant's house and
recovered therefrom the following ten articles :
-----------------------------------------------------------Articles
seized. Weight Estimated value.
-----------------------------------------------------------Rs.
1. Silver slab. 2600 tolas 5,200/
2. 29 Sovereigns 2,262/(King Ed. VII).
3. 9 pieces of gold bullion 201 tolas and 9
mashas. 22,193/
4. 4 pieces of silver bullion 114 tolas. 230/
5. Uncurrent silver coins numbering 575. 865/
6. Gold bars. 49 tolas and 9 mashas 5,475/
7. 255 Phials of liquid gold. 9,875/8.
Torches 23.
9. Playing cards 3 Dozens 400/10.Glass beads
48 packets.
------Total... 46,500/-----------------------------------------------------------On
July 14, 1951 the Assistant Collector, Ajmer, gave notice' to the appellant to
show cause and explain why the goods seized from him should not be confiscated
under s. 167(8) of the Sea Customs Act and s. 7 of the Land Customs Act. The
appellant in his reply 936 stated that items to 5 supra were brought by him
from Pakistan after the partition of the country in 1947 and that items 6 to 10
were purchased by him bonafide for value in Barmer. On October 27, 1951, the
appellant appeared before the Collector of Central Excise, who made an enquiry,
and admitted before him that items 6 to 10 were smuggled goods from Pakistan,
but in regard to the other items be reiterated his plea that he originally
brought them from Pakistan in the year 1947. The Collector of Central Excise
held that the appellant bad failed to establish that items 1 to 5 had been
brought by him to India in the year 1947 and he also did not accept the plea of
the appellant in regard to items 6 to 10 that he was a bonafide purchaser of
them. In the result he held that all the goods were imported into India in
contravention of, (i) s. 3 of the Import Export Control Act read with ss. 19 and
167(8) of the Sea Customs Act, (ii) ss. 4 and 5 of the Land Customs Act read
with s. 7 thereof.
He made an order of confiscation of the said
articles under s. 167(8) of the Sea Customs Act and s. 7 of the Land Customs
Act; but under s. 183 of the Sea Customs Act he gave him an option to redeem
the confiscated goods within four months of the date of the order on payment of
a sum of Rs. 25,000. In addition he imposed a penalty of Rs. 1,000 and directed
the payment of import duty leviable on all the items together with other
charges before the goods were taken out of customs control. Aggrieved by the
said order, the appellant preferred an appeal to the Central Board of Revenue.
The Central Board of Revenue agreed with the Collector of Central Excise that
the onus of proving the import of the goods in question was on the appellant.
In regard to items 1 to 5, it rejected the plea of the appellant mainly on the
basis of a statement alleged to have been made by him at the time of seizure of
the said articles. In the result the appeal was dismissed. The revision filed
by the appellant to the Central Government was also dismissed on August 28,
1953. Thereafter the appellant filed a writ petition under Art. 226 of the
Constitution in the High Court 937 of Punjab but it was dismissed by a division
bench of the High Court on November 3, 1954. Hence this appeal.
It would be convenient to deal with this
appeal in two parts-one in regard to items 1 to 5 and the other in regard to
items 6 to 10.
The decision in regard to items 1 to 5 turns
purely on the question of onus. The Collector of Central Excise as well as the
Central Board of Revenue held that the onus of proving the import of the goods
lay on the appellant. There is no evidence adduced by the customs authorities
to establish the offence of the appellant, namely, that the goods were smuggled
into India after the raising of the customs barrier against Pakistan in March
1948. So too, on the part of the appellant, except his statement made at the
time of seizure of the goods and also at the time of the inquiry that he
brought them with him into India in 1947, no other acceptable evidence has been
adduced. In the circumstances, the question of onus of proof becomes very
important and the decision turns upon the question on whom the burden of proof
lies.
This Court has held that a customs officer is
not a judicial tribunal and that a proceeding before him is not a prosecution.
But it cannot be denied that this relevant provisions of the Sea Customs Act
and the Land Customs Act are penal in character. The appropriate customs
authority is empowered to make an inquiry in respect of an offence alleged to
have been committed by a person under the said Acts, summon and examine
witnesses, decide whether an offence is committed, make an order of
confiscation of the goods in respect of which the offence is committed and
impose penalty on the person concerned ; see ss. 168 and 171A of the Sea
Customs Act and ss. 5 and 7 of the Land Customs Act. To such a situation,
though the provisions of the Code of Criminal Procedure or the Evidence Act may
not apply except in so far as they are statutorily made applicable, the
fundamental principles of criminal jurisprudence and of natural justice must
necessarily apply.
If so, the burden of proof is on the customs
authorities and they have to 938 bring home the guilt to the person alleged to
have committed a particular offence under the said Acts by adducing
satisfactory evidence. In the present case no such evidence is forthcoming;
indeed there is no tittle of evidence to prove the case of the customs
authorities. But it is said that the onus shifted to the appellant for three
reasons, namely, (i) by reason of the provisions of s. 178A of the Sea Customs
Act; (ii) by reason of s. 5 of the Land Customs Act; and (iii) by reason of s.
106 of the Evidence Act.
Section 178A of the Sea Customs Act does not
govern the present case, for that section was inserted in that Act by Act No.
XXI of 1955 whereas the order of confiscation of the goods in question was made
on January 18, 1952. The section is prospective in operation and cannot govern
the said order.
Nor does s. 5 of the Land Customs Act apply
to the present case. Under s. 5(1) of the said Act, "Every person desiring
to pass any goods by land, out of or into any foreign territory shall apply in
writing for a permit for the passage thereof, to the Land Customs Officer in-charge
of a land customs Station By sub-s. (2) of s. 5 of the said Act, if the
requisite duty has been paid or the goods have been found by the Land Customs
Officer to be free of duty, the Land Customs Officer is empowered to grant a
permit. Under sub-s. (3) thereof, " Any Land Customs Officer, duly
empowered by the Chief Customs authority in this behalf, may require any person
in charge of any goods which such Officer has reason to believe to have been
imported, or to be about to be exported, by land from, or to, any foreign
territory to produce the permit granted for such goods; and any such goods
which are dutiable and which are unaccompanied by a permit or do not correspond
with the specification contained in the permit produced, shall be detained and
shall be liable to confiscation." This section has no bearing on the
question of onus of proof. This section obviously applies to a case where a
permit is required for importing goods by land from a foreign country into
India and it empowers the Land Customs Officer, who has reason to believe that
any 939 goods have been imported by land from any foreign territory, to demand
the permit and to verify whether the goods so imported correspond with the
specification contained in the permit. If there was no permit or if the goods
did Dot correspond with the specification contained in the permit, the said
goods would be liable to be detained and confiscated. The application of this
section is conditioned by the legal requirement to obtain a permit. If no
permit is necessary to import goods into India, the provisions of the section
cannot be attracted. In the present case the customs barrier was established
only in March, 1948, that is, after the said items of goods are stated by the
appellant to have been brought into India.
We cannot also accept the contention that by
reason of the provisions of s. 106 of the Evidence Act the onus lies on the
appellant to prove that he brought the said items of goods into India in 1947.
Section 106 of the Evidence Act in terms does not apply to a proceeding under
the said Acts.
But it may be assumed that the principle
underlying the said section is of universal application. Under that section,
when any fact is especially within the knowledge of any person, the burden of
proving that fact is upon him. This Court in Shambu Nath Mehra v. The State of
Ajmer (1), after considering the earlier Privy Council decisions on the
interpretation of s. 106 of the Evidence Act, observed at p. 204 thus:
"The section cannot be used to undermine
the well established rule of law that, save in a very exceptional class of
case, the burden is on the prosecution and never shifts." If s. 106 of the
Evidence Act is applied, then, by analogy, the fundamental principles of
criminal jurisprudence must equally be invoked. If so, it follows that the onus
to prove the case against the appellant is on the customs authorities and they
failed to discharge that burden in respect of items 1 to 5. The order of
confiscation relating to items 1 to 5 is set aside.
Before closing this aspect of the case, some
observations have to be made in respect of the manner in (1) [1956] S.C.R. 199.
940 which the statement given by the
appellant when the goods were seized was used against him by the customs
authorities.
It would be seen from the order of the
Collector of Central Excise as well as that of the Central Board of Revenue
that they had relied upon the statement alleged to have been made by him at the
time the search was made in his house in order to reject his case that he
brought some of the items of goods into India in the year 1947. The appellant
in his reply to the show-cause notice complained that his statement was taken
in English, that he did not know what was recorded and that his application for
inspection and for the grant of a copy of his statement was not granted to him.
It does not appear from the records that he was given a copy of the statement
or that he was allowed to inspect the same. In the circumstances we must point
out that the customs authorities were not justified to rely upon certain,
alleged discrepancies in that statement to reject the appellant's subsequent
version. If they wanted to rely upon it they should have given an, opportunity
to the appellant to inspect it and, at any rate, should have supplied him a copy
thereof.
Coming to items 6 to 10, we have no reason to
reject, as we have been asked to do, the statement made in the order of the
Collector of Central Excise dated October 27, 1951, that the appellant accepted
that items 6 to 10 were smuggled goods from Pakistan. It would have been better
if the customs authorities had taken that admission in writing from the
appellant, for that would prevent the retraction of the concession on second
thoughts. That apart, it is more satisfactory if a body entrusted with
functions such as the customs authorities are entrusted with takes that
precaution when its decision is mainly to depend upon such admission.
But in this case, having regard to the
circumstances under, and the manner in, which the said concession was made, we
have no reason to doubt the correctness of the statements of fact in regard to
this matter made in the orders of the customs authorities. If so, it follows
that the finding of the customs authorities that the appellant purchased the
said items, which were smuggled goods, should 941 prevail. The order of
confiscation of these five items will, therefore, stand.
Even so, it is contended by the learned
counsel for the appellant that the customs authorities went wrong in imposing a
penalty on him under s. 167(8) of the Sea Customs Act. The said section reads:
" If any goods, the importation or
exportation of which is for the time being prohibited or restricted by or under
Chapter IV of this Act, be imported into or exported from India contrary to
such prohibition or restriction............ such goods shall be liable to confiscation;
and any person concerned in any such offence shall be liable to a penalty not
exceeding three times the value of the goods, or not exceeding one thousand
rupees." The appellant's argument is that though he purchased the said
smuggled goods he is not concerned with the importation of the goods contrary
to the prohibition or restriction imposed by or under Ch. IV of the Sea Customs
Act. The 'offence consists in importing the goods contrary to the prohibition
and, therefore, the argument proceeds, a person, who has purchased them only
after they were imported, is not hit by the said section. There is some force
in this argument, but we do not propose to express our final view on the matter
as the appellant is liable to the penalty under s. 7(1)(c) of the Land Customs
Act, 1924. The said section reads:
" Section 7 (1): Any person who(c)aids
in so passing or conveying any goods, or, knowing that any goods have been so
passed or conveyed, keeps or conceals such goods, or permits or procures them
to be kept or concealed, shall be liable to a penalty not exceeding, where the
goods are not dutiable, fifty or, where the goods or any of them are dutiable,
one thousand rupees, and any dutiable goods in respect of which the offence has
been committed shall be liable to confiscation." In this case the finding
is that the appellant with the 120 942 knowledge that the goods had been
smuggled into India kept the goods, and, therefore, he was liable to penalty
under that section. We hold that the penalty was rightly imposed on him.
It is then contended that the Collector of
Central Excise had no jurisdiction to impose conditions for the release of the
confiscated goods. The Collector of Central Excise in his order says, " In
addition the import duty leviable on all these items together with other
charges, if any payable, should be paid and necessary formalities gone through
before the goods can be passed out of Customs Control ". In Shew.
pujanrai Indrasanrai Ltd. v. The Collector of
Customs (1), a similar question arose for consideration of this Court.
There by an impugned order the Collector of
Customs imposed two conditions for the release of the confiscated goods,
namely, (1) the production of a permit from the Reserve Bank of India in
respect of the gold within four months from the date of despatch of the
impugned order, and (2) the payment of proper customs duties and other charges
leviable in respect of the gold within the same period of four months.
This Court held, agreeing with the High
Court, that the Collector of Customs had no jurisdiction to impose the said two
conditions. The learned Additional Solicitor General concedes that the said
decision applies to the present case.
We do not, therefore, express any view
whether that decision can be distinguished in its application to the facts of
the present case. On the basis of the concession we hold that the conditions
extracted above, being severable from the rest of the order, should be deleted
from the said order of the Collector of Central Excise.
Learned counsel for the appellant then argues
that the option given in the said order to the appellant to redeem the
confiscated goods for home consumption within four months of the order on
payment of Rs. 25,000 was based upon the validity of the confiscation of all
the ten items and, as this Court now holds that confiscation was bad in respect
of items 1 (1) [1959] S.C.R. 821.
943 to 5, the amount of the penalty of Rs.
25,000 should proportionately be reduced. There is justification for this
contention. But we cannot reduce the amount, as under s.
183 of the Sea Customs Act the amount has to
be fixed by the concerned officer as he thinks fit. But as the basis of the
order partially disappears, we give liberty to the appellant to apply to the
customs authorities for giving him an option to redeem the confiscated goods on
payment of a lesser amount, having regard to the changed circumstances.
In the result, the appeal is allowed in part
and the order of the Collector of Central Excise is accordingly modified in
terms of the finding given by us. As the parties succeeded and failed in part,
they are directed to bear their own costs.
Appeal partly allowed.
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