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TMI Blog1977 (7) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... 135(b) of the Customs Act. By an amendment effected in 1973 Section 135 was recast by renumbering clauses (a) and (b) of the provision as sub-section (1) and by introducing two other sub-sections. So, when the charge was mentioned as one being under Section 135(b) it really meant as one under Section 135(1)(b). 4. The defence of the petitioner was that when the Excise Officials searched his house on 27th of September, 1974 they seized from his possession cash of Rs. 21,900/- alone but they did not seize any foreign liquor. He denied the very possession of foreign liquor and its seizure by the authorities. 5. The trial Court as well as the appellate Court accepted the prosecution case, rejected the defence and convicted and sentenced the petitioner as stated above. 6. The prosecution examined P.Ws 1 to 4 of whom the first three witnesses were official personnel and the 4th was the panch witness. It also strongly relied on Exhibit P-5 as a statement given by the petitioner when the search and seizure were made. The petitioner in defence examined one witness. 7. Sri Rajagopala Reddy, for the petitioner raises three contentions before me. (1) There is neither a charge nor a fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1974 at about 4.30 P.M. P.W. 1 with the assistance of P.W. 3 searched the premises of the petitioner and recovered 45 bottles of liquor (whisky) and cash of Rs. 21,900/- in the presence of the petitioner. The learned Judge also rejected the argument advanced on behalf of the petitioner that the evidence on record did not establish that the various rooms from which the liquor was seized were under the occupation of the petitioner. The learned Sessions Judge while coming to this conclusion referred to several circumstances which strengthen that conclusion. The petitioner admitted that P.W. 1 had come to his house and made search and seizure. The evidence of P.Ws. 3 and 4 made it clear that when the search and seizure took place nobody excepting the petitioner and a maid servant were present in the house. The evidence also disclosed that five bottles of liquour were recovered from a plastic basket which was kept in the very room in which the petitioner was found seated. The petitioner gave a statement Exhibit P-5 admitting several things including that the house belonged to him. The petitioner also admitted that a cash of Rs. 21,900/- was also seized from his house. On the basis of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner clearly admitted in this statement that he had 48 bottles of foreign liquor out of which he had already disposed of three. He also admitted that he did not possess or maintain any stock register or account for the stock of foreign liquor. That stock of foreign liquor, he also admitted, was not covered by bills as required by the Customs Rules. In fact he had been doing this business on commission basis for the last few months. There is no substance in the contention that there was neither a charge nor a finding that the 45 bottles of foreign liquor seized from the petitioner had been smuggled and that he had been keeping them knowing that they had been smuggled. In the very complaint the nature of the offence was described thus : "Acquiring possession of liquors of foreign origin in contravention of the provisions of Chapter IVA of the Customs Act, knowing or having reason to believe them to be liable for confiscation and thereby committing an offence punishable under Section 135 (b) of the Customs Act, 1962." This description of the nature of offence is very clear and leaves no score for ambiguity. It was specifically alleged that the petitioner had acquired possessio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In this case the search and seizure took place on 27th of September, 1974. Till 10th October, 1974 there was no notification under sub-section (2) of Section 123 specifying that Section 123 applies to liquors also. Such a notification was made only on 10th October, 1974. The order of confiscation was, however, made on 25th of June, 1975. The contention advanced on behalf of the petitioner is that since the notification was made after the seizure, it has no retrospective effect and does not apply to the petitioner's case, with the consequence that the burden is on the prosecution itself to show that they were smuggled goods. Learned Counsel contends that the Courts below have proceeded on an erroneous assumption that the burden is on the petitioner. Reliance is placed on Amba Lal v. Union of India - 1983 (13) E.L.T. 1321 (S.C) = AIR 1961 SC 264. 16. In the first place, it may be pointed out that even supporting that the burden of showing that the 45 whisky bottles seized from the petitioner were smuggled goods was on the prosecution, the statement of the petitioner Exhibit P-5 provides clear proof of the allegation. Therefore, it can be, without hesitation, and said that the prose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Acts by adducing satisfactory evidence. But the Customs raised the contention that the onus shifted to the appellant in that case for three reasons, one of them being the provisions of Section 178A of the Sea Customs Act. Dealing with this contention the learned Judge points out in paragraph 6 thus : "Section 178A of the Sea Customs Act does not govern the present case, for that section was inserted in that Act by Act XXI of 1955 whereas the order of confiscation of the goods in question was made on 18th January, 1952. The section is prospective in operation and cannot govern the said order." The observation of the Court that Section 178A was prospective in operation is strongly relied on by Sri Rajagopala Reddy to say that the notification of 10th October, 1974 would not apply to the seizure made on 27th of September, 1974. However the importance given to the order of confiscation by the Supreme Court is noteworthy. Manifestly, the learned Judges were of the opinion that the date of the order of confiscation was crucial in order to decide whether Section 178A would apply to the case or not. Evidently the learned Judges held that if Section 178A were in force by the time the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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