1977 (7) TMI 61 - HC - Customs

Summary

Issues Involved:
1. Absence of charge or finding regarding smuggling and knowledge of smuggling.
2. Applicability of the presumption under Section 123 of the Customs Act.
3. Absence of charge or finding of evasion of duty.

Issue-wise Detailed Analysis:

1. Absence of Charge or Finding Regarding Smuggling and Knowledge of Smuggling:
The petitioner contended that there was neither a charge nor a finding that the 45 bottles of foreign liquor seized from his house had been smuggled and that he had been keeping them knowing that they had been smuggled. The court noted that the petitioner was charged under Section 135(1)(b) of the Customs Act, which deals with acquiring possession or dealing with goods liable to confiscation under Section 111. The court referenced Exhibit P-5, the petitioner's statement, where he admitted possession of the foreign liquor without proper documentation, indicating knowledge of the illegal nature of the goods. The court concluded that there was a clear charge and finding that the petitioner possessed the foreign liquor in contravention of the law, and thus, the first contention was dismissed.

2. Applicability of the Presumption Under Section 123 of the Customs Act:
The petitioner argued that the presumption under Section 123 did not apply as there was no notification in respect of liquors on the date of seizure. The court acknowledged that the notification specifying liquors under Section 123(2) was issued on 10th October 1974, after the seizure on 27th September 1974. However, the court found that the crucial date for the burden of proof was when the proceedings for confiscation commenced, which was after the notification date. Additionally, the court held that Exhibit P-5 provided clear proof of the smuggling nature of the goods, thus discharging the prosecution's burden even if it was on them. The court also cited the procedural nature of Section 123, allowing retrospective application, and dismissed the second contention.

3. Absence of Charge or Finding of Evasion of Duty:
The petitioner's third contention was that there was neither a charge nor a finding of an attempt to evade duty. The court clarified that the petitioner was charged under Section 135(1)(b) and not for evasion or attempt at evasion of duty under clause (a). Consequently, the third point did not arise in this case, and the court dismissed this contention as irrelevant.

Conclusion:
The court found no merit in any of the contentions raised by the petitioner. It upheld the decisions of the lower courts, confirming the conviction and the sentence of one year's rigorous imprisonment under Section 135(1)(b) of the Customs Act. The criminal revision case was dismissed, affirming the legality and correctness of the lower courts' judgments.