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TMI Blog1961 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e 136 of the Constitution and filed the appeal which is now before us. 2. A few facts are necessary to be stated to appreciate the point raised for decision. The City Inspector of Police, Jullunder is stated to have received information that some smugglers were on the point of transporting gold from Amritsar into Jullundur and at about midnight on July 16, 1958, further information that some of these had actually come and were present in the house of Gian Chand - the first appellant. A raid-party was accordingly organised and the house of the first appellant was cordoned and raided at about 3 a.m. on the early morning of July 17, 1958. In the course of the search certain bars of gold were found on the person of some of the inmates of the house and in the house itself, as also a large amount of cash. Thereafter the first appellant, his wife - the third appellant - and her brother - the second appellant were arrested, the gold found was seized and a complaint filed charging the three accused of offences under Sections 411 and 414 of the Indian Penal Code. This charge of receiving stolen property preferred against the three appellants was, however, not proceeded with and the police i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erson is in relation to any goods in any way knowingly, concerned in any fraudulent evasion or attempt at evasion of anyduty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods. and it is the correctness of the conviction in the prosecution that followed which is the subject-matter of the appeal now before us. 5. It will be seen from the terms of Section 167(81) that there are two distinct matters which have to be established before a person could be held guilty of the offence there set out : (1) that the goods (in this case gold) were smuggled, i.e., imported into the country either without payment of duty or in contravention of any restriction or prohibition imposed as regards the entry of those goods, and (2) that the accused knowing that the gods were of that character did the acts specified in the latter part of the provision. It is clear that in the absence of any valid statutory provision in that behalf the onus of establishing the two ingredients necessary to bring home the offence to an accused is on the prosecution. 6. In regard to the first of the above matters the position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ession the goods were seized. *** shifting the onus of proof in respect of particular commodities seized under the Act in stated circumstances that the goods were not smuggled on the person from whose possession they were taken. Sub-section (2) set out the commodities to which the section applied and gold was specified as one such. The details of the circumstances in which this provision found its place in the statute book as well as its construction have been dealt with in Collector of Customs, Madras v. Nathella Sampathu Chetty, Civil Appeal Nos. 408 to 410 of 1960, dated 25-9-1961 : (AIR 1962 S.C. 316), and need not here be repeated. Suffice it to say that if the terms of the section were satisfied the gold seized in the present case would be presumed to be smuggled and the burden of proving that they are not, would be on the person from whom they were seize. 7. Without much of a discussion or a consideration of the several provisions the learned First Class Magistrate held that Section 178A of the Sea Customs Act was applicable to the case and that accordingly the onus was properly on the accused. Before considering his reasoning it is necessary to refer to a few other provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is made clear by appropriate language in the first paragraph of Section 180. Learned Counsel for the respondent-State has urged that "the conveyance and deposit" in the office of the Customs authority under the second paragraph of Section 180 also involves a seizure under the Act and for this purpose relied on the meaning of the word `seize' given in Ballantyne's Law Dictionary where it is equated to "taking a thing into possession". This, however, might be the meaning in particular contexts when used in the sense of the cognate Latin expression "seised" while in the context in which it is used in the Act in Section 178A it means `take possession of contrary to the wishes of the owner of property'. No doubt, in cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal right, whether oral or backed by a warrant, it would certainly be a case of seizure but the idea that it is the unilateral act of the person seizing is the very essence of the concept. 9. There is another matter to which reference should be made which, in our opinion, conclusively establishes that the delivery of goods to the Customs authorities under the latter pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 178A of the Customs Act did apply to the case before him but proceeded also to deal with the case on an alternative footing that the provisions of Section 178A were not applicable to the case and set out the circumstances which led him to that conclusion. The learned Single Judge who heard the revision in the High Court, however, dealt with the case solely on the footing that Section 178A was applicable. The constitutional validity of that section was challenged before the High Court and figured prominently in the ground of appeal to this Court but this point has been decided against the appellants by this Court and is therefore no longer a live issue. If, as we have pointed out earlier, the delivery to the Customs authorities under Section 180 is not a seizure under the Act within Section 178A it would follow that the judgment of the High Court cannot be upheld for it has proceeded on the sole basis of the provisions of that section being attracted. We have already pointed out that the learned Sessions Judge had upheld the conviction of the appellants by an independent finding that the prosecution had positively established that the goods were smuggled and that the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X
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