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TMI Blog2014 (1) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... is that the petitioner could not explain as to how he came into custody of the said articles - Decided against assessee. - Civil Writ Petition No. 4432 of 1995 - - - Dated:- 14-2-2012 - A.S. Oka and A.V. Potdar, JJ. Shri V.S. Gokhale A.S. Rao and Neelesh Kalantri, for the Appearing Parties. JUDGMENT By this petition under Article 226 of the Constitution of India, the petitioner has taken an exception to the order dated 31st December, 1987, passed by the Collector of Customs and Central Excise, Pune which has been confirmed by the Customs, Excise and Gold (Control) Appellate Tribunal (hereinafter referred to as CEGAT) at Bombay. The challenge is to that part of the order of the Collector dated 31st December, 1987 by which two articles of gold (described as two gold crude Walis) totally weighing 200 grams the value of which is Rs. 40,800/- have been confiscated under Section 111(d) of the Customs Act, 1962 (hereinafter referred to as the said Act of 1962 ) and under Section 71 of the Gold (Control) Act, 1968 (hereinafter referred to as the said Act of 1968 ). By the said order, penalty of Rs. 25,000/- was imposed on the petitioner under Section 112 of the said Act of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00 a.m. on 15th October, 1985 at Kolhapur. At about 5.30 p.m on the same day, Shri Gavade paid a sum of Rs. 1,65,000/- in cash to Shri Damodar Ramchandra More. When he reached the transport bus stand for catching the bus to Bombay, he was attacked by three unknown persons and one of them snatched the bag containing the money. 5. It is alleged that on 15th October, 1985, the Diwanji of the petitioner placed an order for the said articles (two Walis weighing 200 grams) manufactured out of the foreign marked gold. Shri Parmar in his statement stated that he got them prepared from Shri Nagesh A. Potdar through his servants Shri Shankar Gavade and Shri Vijay Yadav. He stated that the gold brought by Shri D.R. More from Shri Deokar was used for making the said articles. It is alleged in the show cause notice that the petitioner came out with the case that he received 148.00 grams of gold ornaments from Shri. R.R. Kolekar for preparing the new ornaments. He stated that the said gold ornaments and the gold weighing 52.00 grams from the stock in G.S. 12 register was given by him to Shri R.R. Patankar under voucher No. 121 from whom he got prepared the said articles which were handed over ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merbhai Kureshi [1979 Cr.L.J. 1173]. By the said decision, following the decision of the Apex Court in the case of Gian Chand (supra), the Judicial Commissioner of Goa, Daman and Diu held that rule of evidence under Section 123 of the said Act of 1962 cannot be invoked unless the seizure is under the said Act of 1962. He also relied upon a decision of the Madras High Court in case of Bhoormal Premchand v. Collector of Customs [AIR 1967 Madras 39 (V 54 C 13)]. He submitted that the Madras High Court has followed the decision of the Apex Court in the case of Gian Chand (supra). Lastly, he relied upon a decision of the Gujarat High Court in the case of Assistant Collector of Customs, Baroda Anr. v. Mukbujusein Ibrahim Pirjada [1970 Cr. LJ 1305.] and submitted that even the Gujarat High Court has held that the Section 123 of the said Act of 1962 is applicable only when the goods were shown to have been seized under the said Act of 1962. He submitted that the contravention of Section 8(1) of the said Act of 1968 will not arise here as the said articles cannot be said to constitute primary gold within the meaning of Section 2(r) of the said Act of 1968. He submitted that even in the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e respondents regarding availability of efficacious alternative remedy is concerned, we find from the farad sheet that at the time of the admission, the counsel for respondents was heard. There was no reply filed at that stage and there is no reply filed even till today raising the preliminary objection. The farad sheet shows that the writ petition was adjourned for final hearing from time to time from 4th January, 2010 and at no stage such objection was raised. In the case of M.P. State Agro Industries Development Corporation and Anr. v. Jahan Khan [2007 (10) SCC 88], the Apex Court held that exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. Relying upon the decision of the Apex Court in the case of Durga Enterprises Pvt. Ltd. Others v. Principal Secretary of Government of Uttar Pradesh and Others [2004 (13) SCC 665], it is submitted that in a similar case when writ petition was dismissed on the ground of availability of alternative remedy, the Apex Court has passed an order of remand by observing that a writ petition which was pending for the period of 13 years cannot be dismissed on the said ground. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other persons; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactures thereof, watches, and any other class of goods which the Central Government may by notification in the Official Gazette, specify. As far as the said Act of 1968 is concerned, Section 8(1) provides that no person shall own or have in his possession, custody or control or acquire or agree to acquire the ownership, possession, custody or control or buy, accept or otherwise receive or agree to buy, accept or otherwise receive any primary gold. Section 71 of the said Act of 1968 provides that any gold in respect of which any provision of the said Act of 1968 or any rule or order made thereunder has been, or is being or is attempted to be, contravened, shall be liable to confiscation. Power to seize the gold is under Section 66 which empowers Gold Control Officer to seiz ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer seizing the things shall send written notice of their seizure and detention to the nearest custom-house; and immediately after the dismissal of the complaint or the conclusion of the enquiry or trial, he shall cause such things to be conveyed to, and deposited at, the nearest custom-house, to be there proceeded against according to law. The question that now arises is whether the possession obtained by the Customs Department by goods being conveyed to and deposited at the nearest Custom-house within the last words of the second para of Section 180 are goods which have been seized under the Act within the opening words of Section 178A. In the first place, it would be seen that these three sections which have to be read together, draw a distinction between seizure under the Act and a seizure under provisions of other laws. A seizure under the Act is one for which the Authority to seize is conferred by the Act and in the context it could be referred to as a seizure under Section 178. The seizure from the owner of the property under Section 180 is not a seizure under the Act but by a police officer effecting the seizure under other provisions of the law, for instance the Crim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrect appreciation of the law as regards possession. A seizure under the authority of law does involve a deprivation of possession and not merely of custody and so when the police officer seized the goods, the accused lost possession which vested in the police. When that possession is transferred, by virtue of the provisions contained in Section 180 to the Customs Authorities, there is no fresh seizure under the Customs Act. It would, therefore, follow that, having regard to the circumstances in which the gold came into the possession of the Cusotms Authorities, the terms of Section 178A which requires a seizure under the Act were not satisfied and consequently that provisions cannot be availed of to throw the burden of providing that the gold was not smuggled, on the accused. Under Section 178A of the Sea Customs Act, a similar special rule of evidence regarding the burden of proof as provided in Section 123 of the said Act of 1962 was incorporated. The Apex Court observed that unless there was a seizure under the Sea Customs Act, Section 178A thereof will have no application and burden to prove that the gold was not smuggled was not on the accused. The said decision has bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Gold Control Authorities from the police will constitute lawful seizure under the provisions of the said Act of 1968. As specifically held by the Apex Court in the case of Gopaldas (supra) the seizure will be valid and the decision of the Apex Court in the case of Gian Chand will have no application. Therefore, in the present case as far as confiscation of the said articles is concerned, the special rule of evidence will certainly apply. 15. As far as the seizure under the said Act of 1962 is concerned, we have already pointed out that there is a seizure specifically effected under the said Act of 1962. Hence, special rule of evidence under Section 123 of the said Act of 1962 will certainly apply and the burden will be on the appellant to prove that the said articles are not smuggled goods. As far as discharge of burden of proof is concerned, the case of the petitioner is that one Shri Kolekar had handed over old ornaments weighing 148.00 grams to the petitioner for making of new ornaments and that the said gold along with the gold of 52.00 grams available with the petitioner was used for making the said articles. The authorities below have noted that the statement of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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