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TMI Blog1996 (4) TMI 323X X X X Extracts X X X X X X X X Extracts X X X X ..... as each with foreign markings in a bundle. The appellant was not in possession of any valid documents to prove the licit origin. Therefore the officers seized the same on a reasonable belief that the same are smuggled into India. 3. The officers also recovered 6 Nos. of silver ingots with markings 38.425, 39.939, 39.258, 40.421, 38.586 and 38.275. It is the case of the Department that the above silver ingots were found to be tempered with on top and fresh filling marks were found on them. The appellant produced 3 baggage receipts issued by the Madras Airport with respect to the silver bars. The Customs Officers seized the same on a reasonable belief that they are smuggled into the country. They also recovered some money from the appellant amounting to Rs. 1,75,000/-. They were also seized on a reasonable belief that they are the sale proceeds of smuggled gold. 4. On 20-3-1993, the appellant gave a statement to the effect that he was doing business as unlicenced Travel Agent and used to buy foreign goods like silver and gold for the customers of the hotel and sell them on profit. He also stated that the 42 gold bars belonged to Shri Shamsuddin and the silver ingots belonged to S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eafter the appellants filed their reply and the adjudication order was passed. 9. The learned Sr. Advocate Shri Kareem appearing for the appellant contended before us that there was no reasonable belief to seize the gold in question. He also stated that when the documents were produced with respect to the silver, there could not have been any reasonable belief. He contended that as far as the gold is concerned, the same was seized and the receipts were in the house of the appellant and he was not allowed to produce the same. It was therefore stated that when the appellant was examined on 20-3-1993 he has clearly stated that he will produce the documents and they are in his house. The learned Advocate further pointed out that the appellant on 20-3-1993 itself had given the statement to the effect that the gold under seizure were brought by Shri Shamsuddin. He has also pointed out that the appellant has stated that the silver was brought by Shri K. Mohan and Shri G. Kumaraswamy. Therefore he stated that there was no reasonable belief in this regard and therefore the burden is not shifted to the appellant to prove that these are not smuggled gold and silver. In this connection stron ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. But one 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 triplets of gold to 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 Gopalkrishnayya 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, whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances. In the present case the concerned official had mentioned three circumstances which made him entertain the reasonable belief that the article was a smuggled one viz : (1) On the basis of the prior information he was alert and was on the look out, watching the movements of Respondent No. 1. (2) The chain which had adorned the waistline of Respondent No. 1 was coated with mercury so as to give an appearance of being made of silver. (3) As per the opinion of the goldsmith it was made of pure gold. If these circumstances did not make the Superintendent of Customs entertain a reasonable belief that it was a smuggled article, he was not fit to be an Officer of the Customs Department. The circumstance that the chain was coated with mercury and given an appearance of having been made of silver though it was made of pure gold of 99.60 purity or 24 carat, was sufficient even for a layman, not to speak of a Customs official, to entertain the belief that it was smuggled gold. Would any one who was wearing an article as an ornament, evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reasonable belief. See also M.A. Rasheed Ors. v. State of Kerala (AIR 1974 SC 2249) and The Barium Chemicals Ltd. Anr. v. The Company Law Board Ors. (1966 Suppl. SCR 311). It must be reiterated that the conclusions arrived at by the fact finding bodies, the Tribunal or the statutory authorities, on the facts, found that cumulative effect or preponderance of evidence cannot be interfered with where the fact finding body or authority has acted reasonably upon the view which can be taken by any reasonable man, Courts will be reluctant to interfere in such a situation. Where, however, the conclusions of the fact finding authority are based on no evidence then the question of law arises and that may be looked into by the Courts but in the instant case the facts are entirely different. See the principles enunciated by this Court in M/s. Mehta Parikh Co. v. C.I.T., Bombay (1956 SCR 626). The same view was expressed by this Court in Pukhraj v. D.R. Kohli (1962 Suppl. 3 SCR 866) 1984 ECR 121 where while dealing with the provisions of the Customs Act, 1878, this Court held that Section 178 of the said Act imposed the onus of proof that the gold was not smuggled, on the party if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that when materials were there for the officers to form a reasonable belief then in such circumstances, the Tribunal cannot waive the circumstances in order to find out whether the officers could have entertained such reasonable belief. The reasonable belief is that of the officer and when prima facie materials are there, for a reasonable amount to entertain such belief, then the Tribunal cannot waive the circumstances as held by the Hon ble Supreme Court. 15. In the above said case, the learned Advocate has further contended that in the Mahazar nothing is mentioned about the information and about the reasonable belief. But a Mahazar is a document which is prepared at the spot showing the seizure of these silver ingots as well as gold bars. There is no provision of law which requires that the Mahazar contain about the reasonable belief entertained by the officers. Mahazar is only the narration of actual seizure proceedings which have taken place in the house of the appellant. Even otherwise in the Mahazar it has been clearly stated that the documents as well as the gold and silver were seized on a reasonable belief. There is no requirements of law let the officers should mentio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... SUISSE . It is for the appellant to prove that the gold is not smuggled. In order to prove the same, the identity of the gold seized with that of the gold imported under the 3 baggage receipts have to be established by the appellant. There cannot be any presumption that the officers have failed to mention the actual description of the gold imported. On the contrary, under Section 114 of the Indian Evidence Act there is a presumption that they have done their duty correctly unless it is established otherwise. The very fact that the officers have described the gold in the baggage receipts as SUISSE goes to show that these were the only markings on those gold bars which were imported under those baggage receipts. But the gold seized in this case contain markings CREDIT SUISSE . Therefore, it is absolutely clear that the baggage receipts cannot be corelated with that of the gold seized in this case. It is also seen that one Shamsuddin has stated that he has imported the gold under these baggage receipts and he handed over the baggage receipts and the gold to the appellant. There is no statement from Shamsuddin to the effect that he had imported gold containing the markings CREDIT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nly on the basis of allegations of the show cause notice. The allegation in the show cause notice is that these silver are smuggled goods and they are seized on a reasonable belief that they are smuggled goods. Therefore it cannot be said that the adjudicating officer has gone outside the purview of the allegations in the show cause notice. Since the appellant has to prove that these are not smuggled goods, he has produced baggage receipt to show that they are licitly imported into the country. The baggage receipts recovered from the appellant were only photocopies of the baggage receipts relating to the silver already sold. If the baggage receipts show that the seized silver is covered under the same, then the appellant has discharged the burden. A careful scrutiny of the baggage receipts show that they cover 231.250 kg. of silver described as 6 bars. The baggage Receipt No. 15438, dated 5-3-1993 covers 2 silver ingots weighing 78 kgs., baggage Receipt No. 15436, dated 5-3-1993 covers 2 silver bars weighing 76 kgs and baggage Receipt No. 16015, dated 5-3-1996 covers two silver bars weighing 77.250 kgs. The total weight therefore is 231.250 kgs. 20. But as far as these silver bar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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