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TMI Blog1977 (3) TMI 176X X X X Extracts X X X X X X X X Extracts X X X X ..... authority of a search authorisation issued by the Assistant Collector of Customs being respondent No. 4 herein. The customs authorities seized 58 pieces of wrist watches, the original bill and invoices relating to the same, the books of account and the Indian Currency amounting to ₹ 13,000/- from the said shop. The said seizure was made on the alleged belief that the said goods were smuggled goods and the amount of money represented the sale proceeds of smuggled goods. On the same date the residence of the appellants was raided by customs authorities and there was a search. The customs authorities seized one binocular, one ladies wrist watch and Indian Currency amounting to ₹ 1,14,900/- several books of account and other files. The appellant No. 1 had also a locker at the Oriental Bank of Commerce at No. 25, Brabourne Road, Calcutta in his own name and another locker in the Dena Bank in the Ashutosh Mukherjee Road, Calcutta in the joint names of the appellants Nos. 1 and 2. The said lockers were first sealed and then on the 7th of December, 1969, 59 pieces of wrist watches were seized from the Oriental Bank of Commerce. In this appeal the appellants challenged the valid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no documents covering the wrist watches were produced or forthcoming, they were seized on the reasonable belief that those are of smuggled origin or acquired possession illegally and are liable to confiscation under the provisions of the Customs Act, 1962. 3. Therefore, in the instant case it is apparent that the proper officer had formed the reasonable belief, The next question is whether there were any material relevant or germane upon which he could have formed the belief. Learned advocate for the appellants contended that there was no affidavit in answer to the rule nisi by the officer seizing the goods. He submitted that the allegation of the appellants that there were no material for the formation of the belief remained uncontradicted. When a challenge of this nature is thrown it is desirable that the person who has personal knowledge should place before the court facts upon which proper adjudication becomes possible. In this case, however, in the seizure list the officer concerned has stated the ground upon which he has seized the goods. Perhaps because there was nothing further to be stated that the officer concerned has not made any affidavit. It is indisputable in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oof in certain cases.- (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods, shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the official Gazette specify 124. Issue of show-cause notice before confiscation of goods, etc.-- No order confiscating any goods or imposing any penalty on any person shall be made under this Chapter unless the owner of the goods or such person-- (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty ; (b) is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice against the grounds of confiscation or imposition of penalty mentioned therein ; and (c) is given a reasonable opportunity of being heard in the matter : Provided that the notice referred to in Clause (a) and the repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and such notice initiates the proceeding, in our opinion, do not resolve the question whether the officer who has to adjudicate must issue the notice himself. Reliance was also placed on behalf of the appellants in the case of C. S. and Manufacturing Co. v. State of Maharashtra 1972CriLJ329 . That case however dealt with Section 251 of the Criminal Procedure Code of 1898 and the Supreme Court emphasised in view of the provisions of the Code that at the stage of the framing of the charges the court had to apply its judicial mind for considering whether or not there was ground for presuming the commission of the offence by the accused. That view, in our opinion, in view of the statutory provisions with which we have to deal in this case, has no relevance : to the present case. Reliance mainly however was placed on a Bench Decision of the Bombay High Court which requires careful consideration. In the case of M. G. Abrol v. Amichand AIR1961Bom227 the Division Bench of the Bombay High Court was concerned with Section 178-A of the Sea Customs Act, 1878. There the Bombay High Court observed as follows : We had an occasion to deal with this question only recently in Appeal No. 62 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould desire for the purpose of showing that the gold was not smuggled gold. 5. On behalf of the appellants emphasis was laid on the fact that the Bombay High Court : had emphasized that the investigating officer would give notice for adjudication throwing the onus on the party only after considering if there were materials for issue of the notice, in other words only after application of his mind to the facts of the case. Therefore, it was argued that the Bombay High Court had emphasized that the issue of the notice required application of mind and as such such issue of notice must be treated as an integral part : of the adjudication proceeding and must be dealt with by the officer who is adjudicating. We are, however, unable to accept this position. As we have noticed Under Section 123 the burden of proof where any goods have been seized in the reasonable belief that they are smuggled would be on the party from whose possession the goods are seized. This burden would fall on the party only when the proper officer has seized the goods on the reasonable belief that they are liable to confiscation. If there is a seizure until contrary is shown and established it must be presumed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proper adjudicating authority but the notice was given by an officer apart from the proper adjudicating authority. Therefore, in our opinion, appellants cannot have much assistance from the said decision. Reliance was also placed on the well known decision of the Privy Council in the case of Mungoni v. Attorney General of Northern Rodesia 1960 AC 336 at p. 350, in aid of the submission that duty to give notice and power to adjudicate were so interwoven that it was not possible to separate the one from the other so as to put the duty on one person and power on another. In our opinion, this principle will have no application to the facts of the instant case. There is authority of the Collector or the Deputy Collector in the facts of the case to adjudicate on the question of confiscation of the goods. Statute requires that before such adjudication is made notice should be given. It is true that notice is a condition precedent for an order of adjudication. But giving of the notice is not, in our opinion, interwoven with the power to adjudicate on the question of confiscation. In the premises, if the notice had been given by the authority who is not an adjudicating authority in our opi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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