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TMI Blog1983 (9) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... 1(d) read with Section 119 of the Customs Act, 1962. 5. The brief facts of the case are as follows : On 5-1-1982, the Superintendent, Gold and Customs Preventive Unit, Guntur Collectorate, along with his Inspectors, visited the godown of M/s. A.P.T. Co., Vijayawada and found a gunny covered package under lorry receipt No. 36030, dated 29-12-1981. The lorry receipt contained the following particulars : Consignor : Kothari Trading Co., 10-A, Kasichetty Street, Madras. Consignee : Alankar Tailoring Material Stores, Rajahmundry. Description of goods : One G/case cotton cloth. Value of goods : ₹ 1,807 An invoice bearing No. 594 issued in the name of M/s. Alankar Tailoring Material Stores, 31-2-8, Mochi Street, Rajahmundry, was also attached to the lorry receipt. The description given in the invoice was 1. Capston-112 Ms. cotton cloth with particulars of rate and amount. On information that the gunny bag contained contraband goods, the Customs Officers opened the same in the presence of witnesses and Shri A.V.B. Sarma, the person in-charge of M/s. A.P.T. Co. and found inside the package the following items : S. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 29-12-1981 was also given to the appellant. The appellant also further confessed to the fact that he did not have any purchase receipts for the zips and cloth purchased at Madras and that he gave money to the mediator there who purchased these articles and sent them by parcel. 6. The appellant in spite of his being the consignee of the said goods did not make any claim either at the earliest opportunity or within a reasonable time and a show cause notice dated 21-6-1982 was issued to the appellant calling upon him to show cause as to why the goods should not be confiscated to which the appellant sent a reply dated 12-7-1982 contending, inter alia, that he was the owner of the goods covered by lorry receipt No. 36030, dated 29-12-1981 seized from M/s. A.P.T. Co. and that he purchased the said goods through a broker at Madras without the knowledge that they were smuggled goods or goods of foreign origin and that he was a bona fide purchaser of the goods for value and consideration from Kothari Trading Co., Madras, through an unknown broker and that he was not responsible for any wrong declaration made either by the consignor or the broker in the invoice. After due enquiry, the Col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... despatch of the same by him through lorry under a mis-description coupled with the fictitious name of the consignor are circumstances that clearly establish that the appellant had purchased the zips knowing them to be smuggled ones and had transported the same under a false and fictitious invoice. 9. A careful scrutiny of the materials available on record reveals the following factors. The appellant, on his own admission as a person new to Madras, chooses to purchase YKK zips from an unknown person and arrange to despatch the same by a lorry under an invoice containing deliberately false description of the goods. The very name of the consignor-company itself has been found to be fictitious and non-existent by the Customs Officers. It is relevant to note in the context that the appellant had never come forward to prove or establish anything to the contrary. The explanation of the appellant that the mis-description of the goods in the invoice is only with a view to avert a possible tampering or mischief by the transport company is too artificial and puerile to merit any acceptance. The fact that the appellant did not make an early claim of ownership of the consignments in questio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor has found that there is no evidence to establish the ownership of the seized goods in question by Shri Pydiraju. This being so the arguments about the onus of proof under Section 123 of the Customs Act, 1962 was on the Department and also the argument that in the case of zip fasteners which was not a prohibited item, where proof of licit origin was not forthcoming an inference could not be drawn that by mere possession of such zip fasteners must have been illegally imported, are not relevant. The Supreme Court, in AIR 74 S.C. 859 - Collector of Customs, Madras and others v. D. Bhoormull, dealing with such situations in extenso has observed : ........the prosecution of the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is myth, and as Prof. Brett felicitously puts it all exactness is a fake . El Dorado of absolute proof being unattainable, the law accepts for it, probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prude ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in the circumstances of the case, an inference could very well be drawn that the gold must have been imported after the law passed in 1948, restricting its entry, that the burden of proving an innocent receipt of gold lay upon the appellant under Section 106, Evidence Act and that the totality of facts proved is enough to raise a presumption under Section 114, Evidence Act; that the gold had been illegally imported into the country, so as to be covered by Section 111(d) of the Customs Act. It is to be noted that in Labhchand s case (ibid), Section 123 of the Customs Act was not applicable, as the seizure of the gold was by the police and not by the Customs Officer. The Courts in that case did not use this presumption under Section 123 of the Customs Act against the appellant. They relied upon the circumstantial evidence to raise the necessary inference with regard to the character of the gold seized and the possession of the requisite mens rea by the accused. The ratio of Labhchand s case (ibid) applies fortiori, to the facts of the case before us. In Balumal H. Jamnadas v. State of Maharashtra, AIR 1975 S.C. 2083; a Bench of this Court to which one of us (Sarkaria, J.) w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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