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TMI Blog2004 (7) TMI 95X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962 could be attracted in respect of non-notified goods shifting the initial burden on the person claiming to be the owner or from whom the goods were seized to undertake establishing a negative proof that the goods were not smuggled. 2. Learned Counsel for the respondent, however, opposes the said contention on the ground that the application of Section 123 is limited to the goods n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section shall apply to gold and manufactur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral application. Under the rules of evidence one cannot be called upon to establish a negative proof. Burden always lies upon him who alleges a particular fact. Particularly when the provision is penal in nature, the burden lies on the prosecution. Section 123 curbs out exception to the general rule of evidence and creates a special rule applicable to the cases contemplated under sub-section (2) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he retracted his statement, therefore, in such circumstances, the burden of proof lies on the department as was held in Santosh Gupta v. Union of India, 1990 (48) E.L.T. 210 = 1991 (33) ECR 380. 6. However, the decision in Gian Chand (supra) deals with a different subject which has no manner of application in the present case. There it was not a question as to whether the goods seized was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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