1987 (11) TMI 86 - HC - Customs

Issues Involved:
1. Judicial notice of notifications under Sections 11B and 123(2) of the Customs Act.
2. Legality of search and seizure under Section 105 of the Customs Act.
3. Evidence of foreign origin of seized goods.
4. Burden of proof under Section 123 of the Customs Act.
5. Sentencing under Section 135 of the Customs Act.

Issue-wise Detailed Analysis:

1. Judicial Notice of Notifications under Sections 11B and 123(2) of the Customs Act:
The primary issue was whether the court could take judicial notice of the notifications issued under Sections 11B and 123(2) of the Customs Act. The lower court had acquitted the respondents on the basis that these notifications were not produced or marked by the prosecution and could not be taken judicial notice of as they were not considered "laws in force" under Section 57(1) of the Evidence Act. However, the High Court held that these notifications are legislative in character and qualify as laws within the meaning of Section 57 of the Evidence Act. Therefore, the court is bound to take judicial notice of them. The court emphasized that if necessary, it should refer to the gazette or other appropriate documents to ascertain the notifications.

2. Legality of Search and Seizure under Section 105 of the Customs Act:
The respondents argued that the search was illegal due to non-compliance with the mandatory provisions of the Customs Act and Cr. P.C., specifically the lack of written authorization from the Assistant Collector of Customs. The court acknowledged that while there was no written authorization, the illegality of the search does not vitiate the seizure of the articles or the subsequent trial. The Supreme Court precedents cited (e.g., Radha Krishan v. State of U.P.) established that even if a search is illegal, it does not affect the validity of the seizure and subsequent proceedings.

3. Evidence of Foreign Origin of Seized Goods:
The respondents contended that there was no evidence to show that the seized goods were imported goods and that markings on the goods were insufficient proof of their foreign origin. The court noted that the respondents themselves did not dispute that the articles were imported but claimed they were brought into India after payment of duty for personal use. The court found it improbable that the items were intended for household use given their quantity and nature. The court held that the markings on the goods, along with other evidence, were sufficient to infer that the goods were of foreign origin.

4. Burden of Proof under Section 123 of the Customs Act:
Under Section 123 of the Customs Act, the burden of proving that the seized goods are not smuggled lies with the person from whose possession the goods were seized. The court found that the respondents failed to discharge this burden. The statements made by the second respondent and her father (admissible under Section 108 of the Customs Act) indicated that the goods were kept for sale. The court concluded that the respondents did not provide any documents to prove lawful acquisition of the goods.

5. Sentencing under Section 135 of the Customs Act:
The court found both respondents guilty of the offence punishable under Section 135 of the Customs Act. Considering the market value of the seized goods was less than Rs. 1,00,000/-, the court sentenced each respondent to pay a fine of Rs. 3,000/- and in default, to undergo simple imprisonment for one month.

Conclusion:
The High Court allowed the criminal appeal, set aside the order of acquittal, and convicted the respondents under Section 135 of the Customs Act. The court sentenced each respondent to pay a fine of Rs. 3,000/- with a default sentence of one month of simple imprisonment.

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