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TMI Blog1990 (2) TMI 316X X X X Extracts X X X X X X X X Extracts X X X X ..... l Court are not only untenable but perverse and legally erroneous and, therefore, the order of acquittal deserves to be set aside and the respondent be punished according to law. Mr. Natu the learned counsel for Union of India has argued that the High Court in hearing the appeal against the order of acquittal has full powers to review and reassess the evidence on record and reach its own conclusions upon its estimate of the evidence. 2. In nutshell, the facts leading to the institution of the criminal case against the respondent-accused are as under : The complainant-Union of India on whose behalf the Assistant Collector, Customs and Central Excise, Division Amravati, who is the public servant, has filed the complaint against the respondent-Ashok Chavan and the case was registered as Criminal Case No. 46 of 1985. The Collector, Customs and Central Excise, Nagpur, has, in exercise of the powers conferred on him under S. 137(1) of the Customs Act, 1962 (now called as an Act ), has authorised the Assistant Collector to file the complaint against the respondent-accused for the offence punishable under S. 135 of the Act. 3. In the years 1980-82 the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... w that the goods seized from his residential premises were legally imported. As the accused failed to show even any prima facie evidence that the goods seized from his possession are not contraband goods, consequently those were seized under the panchnama and inventory (Exhs. 9 and 10). 5. Subsequently, Statements of the respondent-accused and panchas were recorded under Section 108of the Act. The department also recorded the statements of Ramesh Chavan-real brother of the respondent-accused and of Shri Mahendra, Proprietor M/s. Vikas Watch Corporation. The accused was arrested under section 104 of the Act on 9-6-1983 and was subsequently released on bail by the Court. 6. The department had instituted departmental adjudication proceedings against the respondent-accused. Additional Collector, Customs and Central Excise, Nagpur issued a show cause notice to the accused as to why the goods under seizure should not be confiscated and penalty should be imposed upon him. Thus, the accused was given reasonable opportunity for explaining the circumstances regarding confiscation, possession, custody, control and ownership of the goods under seizure. After due consideration ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for the offence under Section 135 of the Act. The learned Chief Judicial Magistrate, Amravati also directed the Customs and Excise Department to return the seized goods to the accused after the appeal period is over. 9. Mr. Natu the learned counsel for Union of India assailing the observations and findings of the learned trial Court, took us through the various provisions of the Act. 10. Mr. Dey the learned counsel for the respondent-accused raised the first point that the prosecution must fail for want of proper sanction. Exh. 14 is the order sanctioning prosecution as enjoined by Section 137 of the Act. It was issued by the Collector of Customs and Central Excise, Nagpur. Section 137 of the Act bars cognizance without a valid sanction. The order of sanction is assailed on the ground that Exh. 14 does not disclose proper satisfaction on the basis of materials and the materials on which satisfaction was inferred for ordering sanction, were not produced and proved before Court. Without proper and legal sanction, the institution of the criminal proceedings and taking cognizance by the Court is illegal. To substantiate his submissions, he drew our attention to Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sity of sanctioning the prosecution. Of course, even if the sanction order itself does not indicate the materials which were examined by the sanctioning authority, it is open to the prosecution to lead evidence aliunde to establish the facts which constituted the offence and the materials which were considered by the sanctioning authority. But here, unfortunately, the sanctioning authority, namely, the Collector, has not been examined. It has been further observed that - P.W. 1, who is the Superintendent of Central Excise, has purported to have proved the sanction under Ex. 5 and according to his evidence, the Assistant Collector, Central Excise, obtained the sanction from the Collector. Even the said Assistant Collector has not been examined to indicate as to what were the materials which were produced by him before the Collector on the basis of which he accorded the sanction in question. Thus, neither the sanction order itself discloses nor is there any evidence on record to indicate the materials which were produced before the sanctioning authority and were considered by him and in my view, therefore, the said sanction does not conform to the requirements of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the Adjudication Order No. 1/Customs/1985 dated 1-2-1985 passed by the Additional Collector, Central Excise Nagpur and issued C. No. VIII (Cus) 10-5/83/Adj/6644 to 48 dated 5-2-1985 were before the Collector. Exh. 14, the order of sanction for prosecution is dated 30-3-1985. Thus, the adjudication order is earlier to the grant of sanction for prosecution. Exh. 14 the order itself shows that the Collector examined the records of the case and the papers of adjudication proceeding placed before him and was satisfied that it is a fit case for sanctioning prosecution, Application of mind is further evidenced by the detailed facts relating to the offence mentioned in Exh. 14. So also it is stated that on perusal of the papers, the Collector of Customs and Central Excise was satisfied that the respondent-accused committed the offence alleged. That is sufficient compliance of the provisions of Section 137 of the Act. 15. Sanction for prosecution is undoubtedly not an idle formality. It is a valid protection afforded to public servants as a check against frivolous or vexatious prosecutions. Grant of sanction is a solemn and sacrosanct act which has to be by due appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of certain goods which were concealed by the accused in his house. Therefore, the learned trial Court held that the issuance of the search warrant under section 105 of the Act has not been proved. Section 105 of the Act is reproduce herewith : Section 105 - Power to search premises : (1) if the Assistant Collector of Customs, or in any area adjoining the land frontier or the coast of India and officer of custom specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1988 (5 of 1988) relating to searches shall so far as may be, apply to searches under this section subject to the modification that sub-section (5) of Section 165 of the said Code shall have effect as if for the word, Magistrate , wherever it occurs, the words, Collector of Customs were substituted. From the reading o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods were liable to be confiscated under the Act which were secreted in the residential and business premises of the respondent-accused. In the cross-examination of P.W. 1, - Shri V. L. Deshpande it has been brought on record that earlier to the alleged seizure of contraband articles from the residential premises of the respondent-accused, he was found in possession of smuggled goods and the alleged smuggled goods were found in Vikas Watch Corporation, Saroj Chowk, Amravati. It is thus clear that beside the secret information which was placed before the Assistant Collector, the department was aware about the earlier activities of the respondent-accused, and therefore, there was data for reasonable belief. Similarly, it is not being challenged by the respondent-accused that Shri Deshpande did not seize the articles from his residential premises as per Exhs. 9 and 10 - Panchanama and inventory respectively, the goods which were found to be contraband. Mr. Natu the learned counsel for the complainant-Union of India invited our attention to the ruling reported in Venugopalan v. Unnikutty Panicker and ors., (1977 Criminal Law Journal 1862) where in it is observed that the exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustifies the said reasonable belief. 20. Mr. Natu the learned counsel for the appellant-complainant also relied on a case reported in State of Gujarat v. Mohanlal Jitamalji Porwar and another, . Their Lordships discussed what is reasonable belief as follows at page (1063) : Whether or not the official concerned had seized the article in the 'reasonable belief' that the goods were smugged goods is not a question on which the court can sit in appeal. If prima facie there are grounds to justify the belief the courts have to accept the officer's belief regardless of the fact whether the court of its own might or might not have entertained the same belied. Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an overindulgent eye which sees no evil anywhere within the range of its eye sight. The circumstances have to be viewed from the experience eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstance. 21. Reliance was also placed on the case re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch was not examined. Considering these facts, benefit was given. Thus, it is clear that this case is not at all applicable. Though R. S. Seth Gopikisan Agarwal's case was relied on, the observations laid down by their Lordships of the Supreme Court observed in that case as follows : .......' Section 105 of the Act confers an unguided and arbitrary power on the Assistant Collector of Customs to make a search, the only condition being of the facts mentioned therein. It is said that the said belief is practically a subjective satisfaction and the section neither lays down any policy nor imposes any effective control on his absolute discretion. So stated the argument is attractive, but a deeper scrutiny of the provisions indicates not only a policy but also effective checks on the exercise of the power to search by the Assistant Collector of Customs. The object of the section is to make a search for the goods liable to be confiscated or the documents secreted in any place which are relevant to any proceeding under the Act. The legislative policy reflected in the section in that the search must be in regard to the two categories mentioned therein, namely, goods liabl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liance on the case reported in Assistant Controller of Customs for Prevention and others v. The New Central Jute Mills Co. Ltd. . Their Lordships observed in para 13 as under at page (93 94). (The statutory requirement of reasonable belief, rooted in the information in possession of Custom's Officer, is to safeguard the citizen from vexatious proceedings. 'Belief' is a mental operation of accepting a fact as true, so, without any fact, no belief can be formed. It is true that it is not necessary for the Assistant Collector of Customs to state reasons for his belief. But if it is challenged that he had no reasons to believe, in that case, he must disclose materials upon which his belief was formed, as it has been held by the Supreme Court in Sheonath Singh's case, 26. Considering the proposition laid down by their Lordships of the Supreme Court, it is clear that the officer concerned, giving authorization for search and seizure of the contraband articles need not give reasons for his satisfaction. If the authorising officer's satisfaction of reasonable belief is questioned in any collateral proceedings then only he has to produce relevant evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacture and purchase. In the instant case P.W. 1 Shri V. L. Deshpande, Inspector of Central Excise who searched and seized the articles from the residential premises vide Exhs. 9 and 10, Panchanama and inventory of the articles respectively, has given the description with their make in the list of articles (Exh. 10). The perusal of Exh. 10 i.e. inventory indicates that not a single item appears to be of Indian origin. He deposed in para 5 of his deposition that - I was working as an Inspector in the said department at Amravati nearly for 3 and half years. During my tenure at Amravati, I nearly seized or arranged the raid nearly for seventy times for seizing smuggling goods. 28. From the evidence of this witness, it is revealed that whatever goods or articles seized from the residential premises of the respondent-accused are of foreign origin. In para 3 this witness deposed as under : Then we started the search of the house of the accused. At the beginning, we took the search of first room. We took the search of the steel cupboard which was in the first room. We saw foreign clothes, wrist watches, belts etc. We seized tape recorders, car cassettes r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ply and statements of the respondent-accused and his counsel, the goods or articles which were seized from his residential premises held of foreign origin except items 19, 25 and 26 of the inventory and a penalty of ₹ 2500/- was imposed and he paid the fine. The respondent-accused did not prefer any appeal against the order though he was apprised about the provisions of appeal. Thus, sufficient evidence is on record that the articles seized from the residential premises of the respondent-accused are of foreign origin. 31. Section 123 of the Act reads as under : S. 123. Burden of proof in certain cases : (1) Where any goods to which this section applies are seized under the Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made 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 person; (b) in any other case, on the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prove that the articles or goods seized from the respondent-accused are of foreign origin. It also appears that the learned trial Judge has not construed properly the provisions ofS. 123 of the Act. Once the prosecution establishes even prima facie that the articles or goods seized are of foreign origin or contraband, immediately the burden shifts on the accused-respondent to prove that they are not of foreign origin. This is nothing but non-application of mind. The observations of the learned trial Court, in this regard, are contrary to the evidence and thus perverse. 34. Mr. De, the learned counsel for the respondent-accused also attacked the statements recorded by P.W. 1 Mr. V. L. Deshpande and P.W. 5 P. G. D. Deshpande, both Superintendent of Excise Department on the ground that they are not the competent officers under sections 107 and 108 of the Act. Sections 107 and 108 of the Act are reproduced below : S. 107 Power to examine persons. Any officer of customs empowered in this behalf by general or special order of the Collector of Customs may, during the course of any enquiry in connection with the smuggling of any goods, - (1) require an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out of the foreign watches, tape-recorders, cloth and cassettes etc. which were seized this day 8-6-83, are mine and some articles were given to me by a salesman from Bombay for selling. Further he stated that - Out of the said sized articles, some watches, car stereo of Waco Company are mine. But I am unable to produce its receipts just now. I will search and produce the same. According to my knowledge the car stereo of Waco Company is Indian made. The foreign cloth (Japan Mills) is of my personal use. In the subsequent para, he stated that - Regarding other articles I want to say that a salesman named Abdulbhai from Bombay had given me the articles for selling. I do not know address etc. of Abdulbhai. Salesman, Shri Abdulbhai had not given me receipts. Lastly, he has specified that - This aforesaid statement has been recorded as per the answers given to the questions asked by you. I have read it and found to be correct, as per my version. I have put my signature on the statement in full consciousness. 37. The statements recorded by the Customs Officer are admissible in evidence because they are not police officers with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Customs Officer under the Act, it was held that a Customs Officer under the Act is not a Police Officer within the meaning of S. 25 of the Evidence Act. It was emphasised that the proceedings taken by him are for the purpose of holding an inquiry into suspected cases of smuggling and that the Customs Officer is for all purposes an officer of the Revenue. It was laid down that the Customs Officer under the Act is not a Police Officer the statement made before him by a person who is arrested or against whom an inquiry is made, are not covered by S. 25 of the Evidence Act. It was further laid down that until a complaint is filed before a Magistrate the person against whom an inquiry is commenced under the Sea Customs Act does not stand in the character of a person accused of an offence under S. 135. The discussion on this aspect is wound up by this Court as follows - The Customs Officer even under the Act of 1962, continues to remain a Revenue Officer primarily concerned with the detection of smuggling and enforcement and levy of proper duty and prevention of entry into India of dutiable goods without payment of duty and of goods of which the entry is prohibited. He does n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies of Central Excise Department put raid on the house of my younger brother Shri Ashok Sukhadeo-singh Chauhan who resides in my neighbourhood and seized the foreign property of about ₹ 58,000/- (Fifty Eight thousand rupees). He further states that - My brother Shri Ashok Chauhan does the business of selling foreign articles. As I was knowing this, being his elder brother, I told him number of times for not doing the improper business. But he never agreed to my opinion or advise and continued the same practice. Hence, only he came into trouble, on 8th June, 1983. 41. Thus, taking the prosecution evidence as a whole as discussed above, goes to show that there is substance in the submissions made by Mr. Nathu, the learned counsel for the appellant that though the prosecution has proved that the case against the respondent-accused beyond all reasonable doubt, the learned trial Court disposed of the case casting the burden of proof on the complainant and stating that the complainant did not discharge the onus. The learned trial Court also failed to consider the material items of evidence such as statements of the respondent-accused recorded by the of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e levied under the Customs Act. 43. Mr. De, the learned counsel for the respondent-accused while urging for leniency, has taken us through the citations reported in the cases of Inder v. State of Maharashtra, and Bachchu Lal v. Union of India, 1981 Cri LJ 71. The facts of both the cases are altogether different. In those cases the accused were facing cases for more than 10 years and they were also behind the bars. In the instant case the respondent-accused was never behind the bar. It is true that it was the first criminal case which was lodged by the Customs Department against the respondent-accused. But the respondent-accused earlier to this incident was apprehended by the Customs Officials for dealing in contraband articles and he was fined too. In view of these facts, we are not convinced so far as to release the respondent-accused on a fine alone. Such offences are increasing and therefore taking into consideration all the circumstances, we are reluctant to impose only a sentence of fine on the accused. We feel, the ends of justice would meet if the respondent-accused is sentenced to suffer rigorous imprisonment for three months. 44. We, therefore, accept the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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