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TMI Blog2003 (6) TMI 235X X X X Extracts X X X X X X X X Extracts X X X X ..... Ahmedabad - Rs. 50,00,000/- (Rupees fifty lakhs only) (3) Shri Devang Amrutlal Patel Proprietor of M/s. Patel Bullion Ahmedabad - Rs. 50,000/- (Rupees fifty Thousand only) (4) Shri Natubhai Babubhai Patel - Rs. 5,000/- (Rupees Five Thousand only) (5) Shri Jashwant Kanjibhai Patel - Rs. 5,000/- (Rupees Five Thousand only) (6) Shri Arvindbhai Kantilal Patel - Rs. 5,000/- (Rupees Five Thousand only) (7) Shri Bhikhabhai Tulsibhai Patel - Rs. 5,000/- (Rupees Five Thousand only) (8) Smt. Rasilaben Harshadbhai Rathod - Rs. 5,000/- (Rupees Five Thousand only) (9) Shri Satishbhai Amrutlal Patel - Rs. 5,000/- (Rupees Five Thousand only) 2. The facts of the case in brief are that on 23rd October, 1999 at about 7.30 p.m. to 8.00 p.m. on information of Crime Branch of the Ahmedabad police made search of certain persons at Lakhodi Talav, Navrangpura, Ahmedabad. The said persons were divided into two groups, who were waiting to hire a Rickshaw, when they were intercepted by police officers. On physical verification on the spot by the police officers on the said group of persons, they found certain foreign marked gold biscuits concealed in shoes, cotton bags a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cross-examination that procedure under Code of Criminal Procedure was followed. The impugned order was passed after hearing of the parties in a detailed way. 5. Mr. V.S. Nankani, learned Counsel appeared with other Advocates for some of the appellants and Mr. Sonawane, Consultant appeared for some of the appellant have argued before us as under. The thrust of argument was that from 23rd October, 1999 to 28th October, 1999, it was in the Custody of Ahmedabad Police, which has been admitted by the police officer that the provision of Cr.P.C. has been followed during of search of the persons conducted on 23rd October, 1999. It is, therefore, emphasised before us that once the police has taken custody of a goods, the men, who were having possession of the same have been deprived of a lawful use thereof and also the owner was deprived of lawful exercise of ownership of the gold. It is, therefore, pleaded that when the Customs authority seized the gold on 29th March, 1999 from the police, provision of Section 123 of the Customs Act cannot be made applicable in this case. The thrust of the argument of the appellant is that the burden of proving that the goods have been smuggled is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment may be notification in the Official Gazette specify." to reiterate it is argued that the police have taking custody of the same for 5 days and thereafter customs have seized the same. Therefore, the Commissioner has dealt with the same in Paragraph 39 of the order as under : "As regards the first main argument of the Noticees, it is observed on the basis of, evidence available on record that no seizure of 500 Foreign Marked gold bars was ever made by the Police Officers of Ahmedabad either on 23-10-99 or thereafter. The Police officers had merely intercepted the 8 Noticees and recovered 551 gold bars from them and informed the Customs the Customs officers of Customs, IIQ, Ahmedabad, who had taken over the investigations immediately. The assertion of the Noticee that the gold was seized by the Police officers, is therefore, found to be factually incorrect. The Police panchnama drawn on 23-10-99 has made a specific mention that the gold bars were kept in the same position in the office of Shri Shailesh R. Patel. The relevant Extract from the Police panchnama drawn on 23-10-99 is as follows :- "Since the gold bars are of foreign mark, the Customs officers namely Shri S.K. Mall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ultant on 3-10-2000 : Q. No. 1. Why was the gold kept in Police custody from 24-10-99 to 28-10-99 ? Ans. - The gold was kept under Police guard from 24-10-99 to 28-10-99 for the purpose of completing the investigation. It is, therefore, established that no seizure had been effected by the Police Officer at any point of time either on 23-10-99 or thereafter and hence the Noticee's contention that the burden of proof under Section 123 of the Customs Act, 1962 had shifted to the Department is found to be without any basis. Interception or recovery of contraband goods by the Police officers of Ahmedabad cannot be terms as "Seizure". In fact it is borne out by evidence on record that the 500 Foreign Marked gold bars were kept in the office premises of Shri Shailesh R. Patel of M/s. S.K. Jewellers right from 23-10-99 to 28/29-10-99. Hence there is no infirmity in the seizure made by the Customs officers of Ahmedabad after they had made a detailed inquiry in the matter. The first argument of the Noticees, therefore, fails and is liable to be rejected as totally untenable." 9. As against this Mr. Sonavane learned consultant has argued during the cross-examination as follows : "Q ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the meaning in particular contexts when used in the sense of the cognate Latin expression "Seised" while in the context in which it is used in the Act in S. 178A it means 'take possession of contrary to the wishes of the owner of the property'. No doubt, in cases where a delivery is effected by an owner of the goods in pursuance of a demand under legal right, whether oral or backed by a warrant, it would certainly be a case of seizure but the idea that it is the unilateral act of the person seizing is the very essence of the concept." 11. Madras High Court in dealing with Section 123 of the Customs Act had dealt with Section 178A of then existing with Customs Act, 1878 in the case of Bhoormal Premchand - 2000 (125) E.L.T. 118. The said judgment in Paragraph 8 dealt with Gian Chand case. In Paragraph 9 thereof the learned Single judge has held as indicated in Para 9 of the judgment. "'Detention' and 'Seizure' are two different legal concepts. Every detention is not seizure; but seizure always includes detention. The person detaining holds a seizure involves forfeiture of such rights. It cannot be said that there was a seizure at the time when Ghevarchand was compelled to p ..... 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