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TMI Blog1961 (8) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... hop of the petitioner, on a search warrant received from the Subdivisional Magistrate at Gauhati. In the course of the search which was conducted in the absence of the petitioner but in the presence of his employee Sri Dungarmall Jain, a number of articles were seized. We are not concerned with the complaint made by the petitioner in his petition as regards the manner of the search. A number of properties were seized. Thereafter notice was issued to the petitioner to show cause as to why action should not be taken under section 167(8) of the Sea Customs Act against the petitioner. In response to the notice issued by Department the petitioner filed an objection. His contention was that these items were purchased by him from various persons o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. Although under section 167 (8) of the Sea Customs Act a special jurisdiction is conferred on the authorities to confiscate certain goods which have been imported in contravention of the order of prohibition issued by the Central Government. Neither under section 19 of the Sea Customs Act or under the Imports Exports (Control) Act, 1947, still the petitioner is tried of an offence and the rule of criminal jurisprudence that the burden is on the prosecution applies with equal force to the proceedings under the Sea Customs Act. His contention is that the petitioner has claimed that he had purchased these goods in various years from 1951 to 1955. The authorities have only negatived the contention of the petitioner that he had pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iable to confiscation and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees." Section 19 of the Sea Customs Act is under Chapter IV of this Act and it says - "The Central Government may from time to time, by notification in the Official Gazette, prohibit or restrict the bringing by sea or by land goods of any specified description into India across any customs frontier as defined by the Central Government". Section 3 of the Imports Exports (Control) Act, 1947 lays down as follows :- "3(1) The Government may, by order published in the Official Gazette, make provision for prohibiting, restricting or otherwise controlling in al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also varied from time to time. For some period the restriction was in absolute terms. During some time the restriction was partial in as much as the goods could be imported after obtaining the licence. The department therefore in our opinion by merely holding that the petitioner has failed to prove that bona fide purchase of the goods has not discharged the burden on it to the effect that these goods were imported in contravention of the restrictions imposed under the Provision of the Imports Exports (Control) Act, 1947. No evidence has been led by the department to show that these goods were imported during the period when the imposed restrictions were in force. 5.The appellate authority has disposed of the whole matter in a very ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority means to suggest is that as these lights were manufactured recently, they must have been imported after the imposition of the restriction and in contravention of the restriction order. In our opinion no such inference can be drawn from the mere appearance of the torch lights and it cannot be said that the department has discharged that burden placed on it. As regards the Modiana cigarette papers a similar error has been committed by the departmental authority. 6.Reference in this connection may be made in the case of "Amba Lal v. Union of India and Others" reported in 1983 (13) E.L.T. 1321 (S.C.) = A.I.R. 1961 S.C. 264. Dealing with the question of the burden of proof it was observed by their lordships of the Supreme Court at p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If so, 'the burden of proof is on the customs authorities have to bring home guilt to the person alleged to' have committed a particular offence under the said Acts by adducing satisfactory evidence". 7.Dealing with the applicability of section 106 of the Evidence it has been further remarked by their lordships of the Supreme Court at page 267 as follows : - "We cannot also accept the contention that by reason of the provisions of S. 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 1947. Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of universal app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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