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TMI Blog1998 (4) TMI 144X X X X Extracts X X X X X X X X Extracts X X X X ..... arch in the compartment bearing No. 7203 of the said train. The petitioner was found sitting along with one other person just by the side of the said luggage on a seat. The petitioner was then questioned and the petitioner gave certain information disowning title to the articles in the said packages and contended that the goods were given to him only for the purpose of carrying them from Madras to Bubaneshwar. It was stated that the person who gave these articles was unknown to the petitioner and the petitioner was only required to carry them for certain consideration. The said bags contained Zip Fasteners, rubber bands and certain other articles. As the articles were reasonably believed to be liable for confiscation under the provisions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proforma party, it cannot be said that it is not a necessary party. If the order of CEGAT is to be challenged the said Tribunal had to be shown as the proforma party. 4.The writ petition, however, need not be dismissed on technical ground that CEGAT is not made as a party to the writ petition. Even on merits I am inclined to think that the petition will have to be dismissed. 5.The only ground raised in the petition is that the Zip Fasteners in question were not shown to be smuggled goods or articles of which import was prohibited under any provision of the Customs Act. Further it is argued that there was no reason to believe that they were smuggled goods. It was therefore alleged that the order of confiscation as well as of imposing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to gold, watches but also to any class of goods if the Central Government by notification in the Official Gazette so specifies. It is not disputed that zip fasteners were notified under Section 123 of the Act as prohibited goods by a Notification No. 204/84-Customs on 20-7-1984. Item No. 10 of the said notification was concerning zip fasteners. Similarly under the powers conferred by Section 11B of the Customs Act by a notification of even date the Central Government had specified zip fasteners as one of the articles in respect of which special measures for the purpose of checking the illegal import, circulation and disposal were to be taken. However, the learned Counsel for the petitioner says that the alleged incident took place on 14-6-1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ters and flints were notified as"5. provided in Section 123(2) in the Official Gazette of 26-8-1967. Nevertheless, as the provisions of Section 123(1) of the Act only lay down as procedural rule, they could be applied when the case came up for trial before the Presidency Magistrate who actually decided it on 15-7-1969. Indeed, the complaint itself was filed on 30-10-1968. It is immaterial that the appellant was found in possession of the goods on 21-4-1967." It will thus be seen that at the time of taking action if the notification existed it could be read retrospectively. Section 123(1) lays down only a procedural Rule and therefore procedural law can be construed as retrospective also. It appears that the said reasoning was adopted even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terial which was before the appropriate officer prima facie gives sufficient ground to entertain the belief which he entertained, it is immaterial as to whether the Court on its own might or might not have entertained a similar belief. The belief which is referred to in Section 123 is "reasonable belief". Therefore what is to be seen is whether a reasonable man placed in the situation in which the appropriate officer was, would entertain such belief or not. In forming the said belief the condition of mind has to be considered in the given circumstances. Keeping this in view if we appreciate these circumstances and material existing at the time when the petitioner was found in possession of the articles, it is difficult to contend that the O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for forming a reasonable belief that the goods in question are smuggled. It is not necessary to look into those rulings because each case depends on the facts of a particular case. 10.Having regard to all the circumstances and position of law the petitioner has failed to make out any case for seeking relief under Article 226 of the Constitution of India. The petition therefore, deserves to be dismissed. 11.There is one aspect which has not been argued in this petition before me. It appears that under Section 125 of the Act "whenever confiscation of any goods is authorised, the Officer adjudging such confiscation may, in case of any goods, the importation or exportation, where for, is prohibited under this Act or under any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X
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