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TMI Blog1986 (8) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... of Central Excise, Special Customs Preventive Unit, Kasaragod searched the godown in the presence of its owner Sri Kekkepuram Abbas, the Village Officer and other independent witnesses. The search yielded 53 gunny packed bundles containing textiles of foreign origin covered with coconut palm leaves. In the reasonable belief that they were smuggled into India in violation of the prohibition imposed under Section 11 of the Customs Act read with Section 3(2) of the Imports and Exports (Control) Act, 1947, they seized 53 bundles of fabrics. Those bundles were taken to the customs house where a detailed examination was done and an inventory prepared. The owner of the godown Sri Abbas stated that the Godown was leased out to the accused Mohammed on a monthly rent of Rs. 20 for storing fish manure and that he did not know the accused of having stored contraband articles in the godown. He produced an unregistered lease deed to justify his statement. On 13-7-1972 the accused appeared before the Superintendent of Central Excise. A statement under section 108 of the Customs Act was recorded from him. He deposed that the godown was taken on lease by him and that he agreed to the request of one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s were smuggled goods and thus liable to confiscation under Section 111 of the Customs Act. Now it is to be seen whether the ingredients have been established by the prosecution. 6. At about 2 a.m. on 24-1972 P.W.1 opened godown bearing KMC/ 10/196 and seized 53 bundles of textile goods. The seizure was effected by P.W. 1 in the presence of Abbas the owner of the godown, the Village Officer of Kasargod Village and other independent witnesses. Abbas gave a statement under Section 108 of the Customs Act. As per that statement the godown was rented out to the respondent on a monthly rent of Rs. 20. Rent deed executed by the respondent was produced before P.W. 1. It is marked as Ext. P3 in this case. Respondent appeared before P.W. 1 and he gave a statement under Section 108 of the Customs Act. That statement is marked in this case as Ext. P4. In Ext. P4 the respondent admits the rental arrangement. The question that arises is whether the statement given by the respondent under Section 108 can be acted upon and whether Ext. P3 rent deed is taken as validly proved. 7. The respondent appeared before P.W.1 in pursuance to notice under Section 108 of the Customs Act on 18-7-1972. After ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ground to discard the seizure which is otherwise found to be acceptable. 10. The textile fabrics which were seized were subjected to chemical examination. P.W.5 is the Chemical Examiner of Customs House, Cochin. After chemically examining the fabrics he gave an opinion "It is fabric mainly composted of synthetic yarn". Ext. P4 is the report signed by P.W.5. P.W.5 gave evidence before Court to the effect that in 1972-73 the Government of India had not given permission to manufacture the textile goods having the same composition. He has further stated "From my experience, feel, marking, finish and analytical report I can find that it was of foreign origin". In cross-examination he stated "During 1972-73 the Textile Commissioner did not allow to manufacture such composition manufactured in India". Nothing has been brought out to discredit his testimony and his report. Therefore the article seized were established to be of foreign origin. 11. Section 123 of the Customs Act as it stood in 1962 reads as follows : "(I) 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 no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nk it worthwhile to quote the following observation of the Supreme Court from State of Maharashtra v. Natwarlal (AIR 1980 S.C. 593). "The provisions of section 135(1) and like statutes which are designed to suppress smuggling have to be construed in accordance with the mischief rule first enunciated in Heydon's case. Accordingly the words 'acquires possession' or 'keeping' in C1. (b) of Section 135(1) are not to be restricted to 'possession' or 'keeping' acquired as an owner or a purchaser of the goods. Such a narrow construction - which has been erroneously adopted by the High Court in our opinion would defeat the object of these provisions and undermine their efficacy as instruments for suppression of the mischief which the Legislature had in view. Construed in consonance with the scheme of the statute, the purpose of these provisions and the context, the expression 'acquires possession' is of very wide amplitude and will certainly include the acquisition of possession by a person in a capacity other than as owner or purchaser. This takes its colour from the succeeding phrase commencing with the word 'or' which is so widely worded that even the temporary control or custory of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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