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TMI Blog1985 (3) TMI 279X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign marks. The locker was sealed and the key was taken away by the Officers of the Enforcement Directorate. The next day (4-11-1981) the locker was again opened by the Officers of the Directorate of Revenue Intelligence and they took possession of various articles therein including the above said 10 gold bars. Statements were then recorded from Mr. and Mrs. Raina as well as Mrs. Sheela Sumbaly and various others. Subsequently a show cause notice dated 2-2-1982 was issued to these two appellants and others. Notice had been issued to Mrs. Sheela Sumbaly also since the investigation preceding the issue of show cause notice had disclosed that it was she who had brought the 10 gold bars and left them in the locker. Mrs. Raina replied that she was unaware of the contents of the package which she had allowed her mother to place in the locker for safe custody and it was only at the time of inspection of the locker on 3-11-1981 that she became aware that the cloth bag kept by her mother in the locker contained gold bars of foreign origin. She, therefore, denied that she had been ever in conscious possession thereof. In other respects she adopted the reply of her mother, Mrs. Sheela Sumb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for certain reasons advanced by them. 5. The first contention of Shri Aggarwal is that the gold in question had been seized on 3-11-1981 itself by the Officers of the Enforcement Directorate and as the said officers were not Customs Officers, no presumption could be raised as under Section 123 of the Customs Act and in the absence of such presumption no offence could be deemed to have been committed with reference thereto except on proof of actual contravention of the provisions of the Customs Act with reference to these gold bars. As earlier stated, the gold bars in question have foreign markings. They would, therefore, be notified goods under Section 123 of the Customs Act. In that event, if they had been seized by Customs Officers in the reasonable belief that they are smuggled goods, it would be for the appellants to prove that they are not smuggled goods. But the contention of Shri Aggarwal is that as the Officers of the Enforcement Directorate had made the seizure on 3-11-81 and as they are not Customs Officers, Section 123 does not come into play and, therefore, the department has to independently establish that these foreign marked gold bars had been at any particular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em, that the key of the locker had been taken away by the Officers of the Enforcement Directorate. We hold that there was no seizure on 3-11-81 and that the actual seizure took place on 4-11-81 only. That would mean that the seizure having been made by the Customs Officers under the reasonable belief that the seized articles were smuggled goods; the burden of proving that the subject gold bars were not smuggled goods shifted on to these two appellants. 8. Therefore, it is now to be considered whether the said burden had been discharged by either of these appellants. As earlier stated, the sequence of events was, even according to the appellants, that Mrs. Sheela Sumbaly had come to New Delhi on the way from Hyderabad to Kashmir and while visiting her daughter (Mrs. Raina) at New Delhi Mrs. Sumbaly, who had stayed over in New Delhi for a few days, requested Mrs. Raina for permission to keep certain articles in the locker of Mrs. Raina, and Mrs. Raina accommodated her and that is how the said cloth bag containing the subject gold bars came to be kept in the locker of Mrs. Raina. The question, therefore, to be considered is whether either Mrs. Sumbaly or Mrs. Raina had knowledge th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... department being that the gold bars had been brought by Mrs. Sheela Sumbaly and left in the locker, though, according to the department, with the knowledge of Mrs. Raina also. It must also be noted that the further statement of Mr. Dina Nath was that the gold bars have been left with his wife and it was she who had made the present to the grand daughter, he himself not having attended that marriage. 11. In the above circumstances, we are satisfied that at any rate so far as Smt. Neena Raina is concerned, there is no clinching evidence established that she was in conscious possession of these foreign marked gold bars, her case as to how the same came to be in her locker without her knowledge of the contents, being quite acceptable. 12. But so far as Mrs. Sheela Sumbaly is concerned, her statement made on 5-11-81 was that the gold bars had been given to her by her mother-in-law in May, 1980 when she had gone to visit the in-laws in Kashmir but that her husband as well as her father-in-law were not aware of the said entrustment. No doubt, in her subsequent statements or replies Mrs. Sumbaly had tried to make out that the answers had not been properly recorded or that they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... smuggled into India. But that was on the basis that Section 178A of the Sea Customs Act did not cover the said case as the said Section was inserted subsequent to the order of confiscation of the goods. But in the present case it has been seen that the gold bars in question are admittedly foreign marked and under Section 123 of the Customs Act, the burden rests on the appellants to prove that they were not smuggled into India, in view of the fact that the goods had been seized on 4-11-81 by the Customs Officers under the reasonable belief that they are smuggled goods. Therefore, the observations in AIR 1961 SC 264 do not help the appellants in these appeals. 15. In the light of the above discussion, we hold that so far as Mrs. Neena Raina is concerned, the findings against her under Section 112 of the , Customs Act as well as under Section 74 of the Gold (Control) Act are concerned, they ought to be set aside. So far as Smt. Sheela Sumbaly is concerned, we hold that the findings against her under Section 112 of the Customs Act as well as Section 74 of the Gold (Control) Act are concerned, they should be confirmed. The order of confiscation of the gold under Section 111 (d) of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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