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TMI Blog1988 (8) TMI 117X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Ext. 3 under S. 107 of the Customs Act was recorded and he was taken to the Customs House where M.L. Wadhawan (PW 19) who was then Superintendent, Preventive Services, further examined him and recorded a statement, Ext. 80. He made a further statement Ext. 52 on the following day i.e. to say 19th February, 1964. On the same date L.N. Majumdar (PW 1) received an authorisation, Ext. 4 from M.L. Wadhawan (P.W. 19) to search the residence of the respondent at 285-E, Bowbazar Street and 7 pieces of diamonds were recovered and seized under search list Ext. 8 as these were also reasonably believed to be smuggled goods. On the same date, another preventive officer, Calcutta Customs, Bikash Roy (P.W. 2) on the basis of another authorisation Ext. 20, from the said Superintendent, Preventive Services searched a locker bearing No. 235 of Indian Overseas Bank Ltd. standing in the name of the respondent and his son Surindra Kumar Shah and 5 pieces of diamonds were found and seized under a search list, Ext. 21 as these were also reasonably believed to be smuggled goods. Ultimately a complaint was filed in the court of a competent Magistrate against the respondent and others. The respondent d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... substantive evidence but could at best corroborate the testimony of the seizing officer in court. This is no doubt the correct position of law but even though the seizing officer may not say in his deposition in so many words that he had a reasonable belief that the goods seized by him were smuggled goods, still his evidence read in its entirely may support an inference that he did entertain a reasonable belief that the goods were smuggled into the country and in such situation the endorsement made by him in the search list would of course corroborate the inference from his testimony. The evidence of L.N. Majumdar (P.W. 1) discloses several facts which unmistakably suggest that he had a reasonable belief that the diamonds were smuggled goods. In the first place, it is found that although the respondent correctly declared the diamonds when he was asked to fill in the baggage declaration Form Ext. 1, still the said officer proceeded to search the person of the respondent, suggesting thereby that he was not satisfied with the truth of the declaration made by the respondent regarding acquisition of the offending goods. It is further in his evidence that the respondent had a gold watch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is abundantly clear that the real question for adjudication before their Lordships in both the cases was the point of time when the reasonable belief should have been formed to attract the provisions of S. 178A of the Sea Customs Act, 1878. Their Lordships held that even though the section did not prescribe any particular time at which the reasonable belief should exist at the time of seizure. Therefore, these decisions are by no means any authority for the proposition that it must be the seizing officer himself and not his superior officer who should entertain the reasonable belief contemplated by S. 178A of the Sea Customs Act, 1878, or for the matter of that by S. 123 of the Customs Act, 1962. The learned advocate for the respondent on being asked by us has not been able to show any appropriate authority on this point either by this court or by the Supreme Court. He has, however, stated that the provision of S. 165 Code of Criminal Procedure which empowers a police officer to search for anything necessary for the purpose of an investigation has been interpreted by this court (reference not supplied) to mean that the seizing officer himself must have reasonable ground for beli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant either in this court or any of the courts below that even though M.L. Wadhawan (P.W. 19) might have entertained a belief, it was not a reasonable one so as to attract the provisions of S. 123 of the Customs Act, 1962. Indeed the witness was not also cross-examined on this point nor any suggestion was given to the effect that the belief entertained by him was not reasonable. Therefore, there is no doubt that at least M.L. Wadhawan (P.W. 19) had reasonably believed that the respondent was in possession of smuggled goods even before its actual seizure at the Airport on 18-12-1964. Thus it is found that eleven pieces of diamond were recovered from the possession of the respondent at Dum Dum Airport on the 18th February, 1964 in the reasonable belief that these were smuggled. 9.There was no controversy regarding the prosecution evidence about recovery of seven pieces of diamonds from the residence of the respondent and five pieces of diamonds from the locker referred to previously, both on the 19th February, 1964. The respondent, however, was acquitted of charge on these two counts by the learned lower appellate court as it was not satisfied that the respondent even though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tage of the statutory presumption, provided of course that the goods were reasonably believed to be smuggled at the time of seizure. 10Now, therefore, what calls for adjudication is. whether the diamonds seized from the residence and the locker on the 19th February, 1964 were reasonably believed to be smuggled goods at the time of seizure and if this question is answered in the affirmative, then the onus will lie upon respondent to prove the contrary because he has admitted his ownership of these diamonds. It has already been noticed that the residence and the locker were searched by L.N. Majumdar (P.W. 1) and Bikash Roy (P.W. 2) respectively under authorisations Exhibits 4 and 20 given by M.L. Wadhawan (P.W. 19) although neither L.N. Majumdar (P.W. 1) nor Bikash Roy (P.W. 2) has deposed expressly that they had reasonably believed that the diamonds seized by them were smuggled goods. Still if it is found that their superior officer M.L. Wadhawan (P.W. 19) had such belief then it would be held that the goods were seized in the reasonable belief that those were smuggled goods and the presumption embodied in S. 123(1) of the Customs Act would operate. The testimony of M.L. Wadhawan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oods. The other dimension is that there is enough material on record to show that the respondent had succeeded in proving that the diamonds were not smuggled goods. Regarding the first contention there is no merit whatsoever for the simple reason that a rule of evidence in the shape of a presumption is enacted only with the view to relieve a person from proving what is to be presumed and if in spite of such a rule, an initial onus still remains, it would amount to a negation of the rule itself. That this is the correct view will appear from the decision of the Supreme Court in Kewal Krishan v. State of Punjab, 1993 (67) E.L.T. 17 (SC) = AIR 1967 SC 737, where a similar contention was raised and rejected by Their Lordships in a case under Sea Customs Act, S. 178A of which laid down a rule of evidence comparable to that contained in S. 123(1) of the Customs Act. Their Lordships had, inter alia, observed that when goods were seized in the reasonable belief that they were smuggled goods, then the burden of proving that they were not smuggled goods was on the person from whose possession the goods were seized, and not on the prosecution, to show that the goods were not of Indian origin. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dan Singh Ors., AIR 1986 Pat 38. In the instant case the respondent was convicted by the learned trying Magistrate in September, 1979 and acquitted by the learned lower appellate court in December, 1979. Therefore, Special Leave to appeal was granted by this Court in April, 1980 and in the same month the appeal was admitted. Ultimately the appeal was heard in May, 1988. Therefore, it is no doubt true that a long time has passed since the trial was commenced before the learned Magistrate sometime in March, 1966 and it has to be decided whether by reason of passage of time, the Appellate Order of acquittal, even though found, to be unreasonable and perverse, should be confirmed. The decision of the Supreme Court referred to above does not really come to the aid of the respondent. In that case a police report was submitted in December, 1962 and charge was framed in September, 1962 and thereafter the progress of the case was very tardy because the orders passed therein were challenged in appeal or revision from time to time. Ultimately in 1979 the accused persons made an application before the High Court to quash the proceedings which was allowed, one of the reasons being that the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused to examine the issue of delay generically in all cases including technical offences but restricted themselves within the narrow parameters within which the issue arose, namely the reversal of a clean acquittal on a capital charge and consequent dislodging of a double presumption of innocence after unexplained, callous and inordinate delay of more than 10 years. In view of this express observations by Their Lordships limiting the scope of the decision, it cannot be taken as laying down a general proposition that in all cases, delay for whatever reason it may be, constitutes violation of the constitutional guarantee in Article 21 of the Constitution. Their Lordships had also pointed out that the judgment in Ramdaras Ahir's case (supra) must be deemed as an integral part of the judgment of the Full Bench and noted the finding in Ramdaras Ahir's case that a callous and inordinately prolonged delay of 10 years or more which in no way arises from the accused's default or is otherwise not occasioned due to any extraordinary and exceptional reasons, in the context of the reversal of a clean acquittal of a capital charge would plainly violate the constitutional guarantee of a speed ..... X X X X Extracts X X X X X X X X Extracts X X X X
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