9911796707
TMI Blog1983 (6) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... n the shape of biscuits weighing 10 tolas each, bearing foreign marks JOHNSON MATHEY LONDON 999.0 - 10 TOLAS on one side and MOCATTA-GOLDSMID LTD. LONDON on the other side. The officers seized the same under cover of mahazar dated 16-4-1964, attested by witnesses. On 17-4-1964, the appellant gave a statement confessing to the purchase of the gold under seizure from one Sri Ram at Bombay on 15-4-1964 for ₹ 39,500/- and was transporting the same for disposal at Bangalore to Popular Jewellers. He further confessed of having transported contraband gold on earlier occasions. The statement of the appellant was corroborated by a statement of his cousin, Sripad, who accompanied him. Proceedings were initiated as per law which eventually culminated in an order of absolute confiscation by the Collector of Central Excise and Customs, Bangalore, under Section 111(d) besides a penalty of ₹ 2,500/- under Section 112 of the Act, vide his order C.No. VIII/10/18/70-Cus., dated 29-7-1982, which was affirmed by a Bench of this Tribunal by its order dated 25-6-1983, out of which this present reference application arises. 3. The learned Counsel appearing for the applicant-appellant, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion is purely academic, as in the instant case the criminal court has not given a finding on merits with reference to the contraband nature of the gold in question. 5. The question that arises for our consideration is whether any question of law emanates out of the order passed by the Tribunal meriting a statutory reference to the High Court under Section 130(1) of the Customs Act. The submission of the learned Counsel for the appellant with reference to the applicability of Section 123 as a question of law does not at all arise for consideration on the facts and circumstances of this case. The Tribunal has dealt with the import and applicability of Section 123 in a comprehensive fashion in its order from para 13 onwards and we have clearly found that in the instant case, assuming arguendo that Section 123 is not applicable, there are other clinching circumstances which would clearly cast a burden on the appellant to offer convincing, satisfactory explanation as to the possession of a huge quantity of gold slabs with foreign markings and the Department would be well within its legal rights to invoke statutory presumptions under Sections 106 and 114 of the Evidence Act in the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g circumstances from which a prudent man, acting prudently, may infer that in all probability the goods in question were smuggled goods, and the accused had the requisite guilty knowledge in respect thereof. The leading case is : Issardas Daulat Ram v. Union of India, 1962 Supp. (1) S.C.R. 358. In that case, in reaching the conclusion that the gold had been smuggled, the Collector of Customs considered the credibility of the story put forward by the appellant about the purchase of the gold and also the conduct of the appellant in trying to get the gold melted so as to reduce its fineness by mixing silver with it, in an attempt to approximate the resultant product to licit gold found in the market. The ratio of this decision was followed by this Court in Labhchand Dhanpat Singh Jain v. State of Maharashtra AIR 1975 S.C. 182. The appellant accused therein was trying to enter the railway compartment at Bombay station. Seeing his nervousness, the Railway police questioned him and searched his person and recovered nine bars of gold with foreign markings. The accused put forward an incredible story with regard to the possession of the gold. This Court held that in the circumstances of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the order of the Tribunal at para 15. The present occasion can hardly be one for reopening this issue. However we note in passing that the admitted fact remains that the show cause notice was issued to the appellant immediately after the seizure as early as on 17-4-1964 and a subsequent notice from the Collector of Customs and Central Excise dated 18-6-1970, purporting to be a show cause notice issued in consequence of the judgment of the High Court of Karnataka at Bangalore dated 18-3-1970 in W.P. 2567 of 1967 giving liberty to the Collector of Central Excise and Customs, Bangalore to proceed with the adjudication proceedings under law after affording an opportunity to the appellant to file explanation to the show cause notice and of being heard in person, cannot be said to be a fresh show cause notice in supersession of the earlier one. It is nobody s case that the Department gave up the earlier show cause notice and issue of a notice at a later point of time pursuant to the order of the High Court cannot obliterate or nullify the validity of the earlier show cause notice which very much exists. Therefore, there was no supersession of the earlier notice and bar of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llegation of overloading of the bus. In a criminal prosecution before the Magistrate s Court in respect of an identical question as to the overloading of the bus, the petitioner was acquitted on a finding of fact. 11. Though not cited by either side we would like to refer to the following case laws having a bearing on this issue. 12. Before the Karnataka High Court in the case of State of Mysore v. Abdul Hafeez, reported in 1967 M.L.J. (Crl.) 506, the question that arose for consideration was whether a criminal court acting under Section 517 of the Code of Criminal Procedure, 1898 can set at naught a confiscation order de hors the provisions contained in the Indian Wireless Telegraph Act. The question was answered in favour of the State on the ground, the view taken by a number of High Courts in this country is that the general provisions of Section 517 do not apply to cases under statutes in which special provisions for forfeiture have been made. Yet another case of the Karnataka High Court on the point is the one reported in AIR 1967 Mysore 231 - State v. Abdul Hasheed, wherein His Lordship Bhimah J. held that Section 517 was controlled by sub-section (2) of Section 5 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Madras High Court, reported in 1955 Madras Weekly Notes Cr. 137 - Assistant Collector of Customs v. Krishna Pillai - and the Division Bench has relied on the same as an authority for the proposition that the authority of the customs to hold and possess the goods in independent of the order of the acquittal made by the criminal court. It would be apposite to extract the observation of Mack J. at page 555 of the said ruling : The fact that they (Customs authorities) instituted prosecution in the Magistrate s Court against a particular person in relation to such property does not mean that it must in any event be handed over to him in the event of his acquittal. The property itself is legally and rightly held by the Custom authorities until duty and discretionary penalty are paid by the claimant, that is, if confiscation is not ordered. I am unable to see how, merely because the prosecution against one person launched by the customs authorities in relation to valuable property obviously smuggled across the border fails, it is incumbent on the Magistrate to return it to this person on acquittal. 14. In a Bench ruling of the Madras High Court, reported in AIR 1952 Madras 85 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chnical reasons. In Karuppa Udaya v. State of Madras, AIR 1966 Madras 460, Rajagopalan J. of the Madras High Court, pointed out with regard to a charge in the criminal court under Section 420 I.P.C. that the question whether the concerned party could have prosecuted in a criminal court or not, did not affect the jurisdiction of the Revenue Divisional Officer to enquire into the truth of the charges. In Mohamed Israil v. Sia Suran Sinha, AIR 1961 Pat. 411 at p. 412, the Bench has held that though the evidence might not be sufficient for securing conviction in a criminal case, the management had every jurisdiction to deny re-employment in the context of heavy suspicion relating to the charge. A Bench of the Orissa High Court in Radhakanta v. State of Orissa, AIR 1962 Orissa 125, has held that the mere fact that the criminal court did not convict the plaintiff of the charges of the criminal breach of trust, cheating and forgery, did not preclude the department from making a further probe into the matter, as the plaintiff had been acquitted upon the benefit of doubt. 16. On a consideration of the ratio embedded in the above rulings, the following principles may be said to emerge : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rl-student in his care. But that cannot preclude the departmental authority, upon those very facts, from punishing him for grave impropriety in his relationships with the girl-students, which disentitles him to that office. 17. We would find in the instant case that factually the criminal court has not acquitted the appellant on merits. The acquittal of the criminal court in respect of one of the two charges, viz. charge under Section 135(b) of the Customs Act against the appellant is on a technical ground on the view that the presumption under Section 135(b) of the Customs Act was not applicable. The criminal court has not considered the applicability of Sections 106 and 114 of the Evidence Act vis-a-vis the appellant in the light of the ratio of the Supreme Court rulings cited supra. The criminal court has not directed the return of the property to the appellant-accused nor has it found that the appellant-accused is entitled to the possession of the goods under Section 517 of the Cr. P.C. Moreover, the criminal court has found the appellant guilty under Rule 126-I(i)(10) read with Rule 126-P(2)(ii) of the Defence of India Rules and has observed that considering his age, antec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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