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2023 (10) TMI 764 - HC - CustomsValidity of search and seizure - Ownership of goods when goods were found in possession of different person - Proof of smuggling of goods - Prayer for declaration, delivery of the goods, damages along with other reliefs - Maintainability of suit under the Sea Customs Act, 1878 - HELD THAT:- The authorities under the Sea Customs Act 1878 are not vested with jurisdiction to decide on this issue or pass declaratory order as to the title or ownership of the confiscated goods. The Plaintiffs were the third parties to whom show-cause notices were not issued. The articles were seized assuming that the Defendant no. 6 illegally imported these articles from foreign countries infringing the provisions of the Sea Customs Act 1878. Neither is there any provision nor is there any machinery under the Act to decide upon the issues. The same considerations apply in cases of Bengal Public Demand Recovery Act and Income Tax Act. Although both the statutes are special statues providing with machineries for enforcement of special provisions consideration and adjudication of declaration of title is not barred by any of the statues. Whether the original Plaintiffs were the owner of the articles and goods set out respectively in Schedule ‘A’, ‘B’ and ‘C’ of the plaint? - whether the goods wherein possession of Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure? - HELD THAT:- Law is well-settled. Section 101 of the Indian Evidence Act provides for burden of proof and on whom such burden of proof lies. Section 102 states that burden of proof should in a proceeding lies on that person who will fail if no evidence is at all given on either side. Section 106 is also relevant to consider in this context. According to the Section 106 when any fact is specially within the knowledge of any person burden of proof of that fact is upon him. The statute never states that any specific or particular kind of evidence is to be tendered to discharge burden of proof - Once the burden of proof is discharged by the Plaintiffs to adduce evidence to substantiate their claims, onus of proof shifts on the Defendants. DW1 Shankar Ghosh stated in evidence that diamond, watches and gold ornaments were suspected to be smuggled and were in the possession of late Ramnath Bajoria. DW 1 was a member of a search party recovery were made from safe key kept in the bedroom of the original Defendant no. 6. Nothing is there in the evidence of DW. 1 to show that the articles in question whereof foreign origin. DW.1 stated in evidence that it was suspected that articles were smuggled and that it was believed that the articles were smuggled without indicating anything else or adducing any evidence that these articles were either imported or not available in the country. There is no concrete or cogent evidence adduced on behalf of the Defendants’ witnessed to rebut the evidences so adduced by the Plaintiffs witnesses disproving their evidences. It is admitted that in the search list the remarks column were penned through - Issues decided in favour of the Plaintiff. Propriety of search and seizure as well as prohibitory order - HELD THAT:- Sea Customs Act, 1878 as well as the Code of Criminal Procedure provides for search and seizure and procedure to be followed therein. Civil Court in exercise of ordinary jurisdiction cannot decide on the propriety of search and seizure; civil court in exercise of ordinary civil jurisdiction is neither authorized nor vested with such power. Similarly, the prohibitory order was passed in exercise of power conferred under the then existing Income Tax Act. Vires could have been challenged in appropriate forum. But exercising ordinary jurisdiction, this Court cannot decide on the same. Therefore, this Court desists from deciding the issues. The Plaintiffs are entitled to a declaratory decree - the instant suit succeeds.
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