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TMI Blog2015 (5) TMI 733X X X X Extracts X X X X X X X X Extracts X X X X ..... . 1365." On an earlier occasion when the appeal was taken up for hearing, Mr. Chakrabarti, learned advocate appearing for the appellant, submitted that an additional question of law should be formulated for ends of justice, which is as follows: "Whether the order under challenge is bad because the order of confiscation was passed without considering the provisions of Section 125 of the Customs Act." Considering that the additional question was raised by the learned advocate for the appellant and Mr. Saraf got enough opportunity to consider the same, we are inclined to add the aforesaid question. Mr. Chakrabarti in support of the first question drew our attention to paragraphs 8 and 9 of the judgment in the case of Gian Chand and Others vs. State of Punjab, reported in 1983 (13) ELT 1365 (SC) which read as follows: "8. The question that now arises is whether the possession obtained by the Customs Department by goods being "conveyed to and deposited at the nearest Customs-house" within the last words ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he burden of proof on them and it would lead to an absurdity to hold that the section contemplated "proof to the contrary" by the Magistrate under whose orders the delivery was effected. For the purpose of deciding the point arising in this case we do not think it necessary to enter into the philosophy of refinements of the law as to the nature of possession. When the goods were seized by the police they ceased to be in the possession of the accused and passed into the possession of the police and when they were with the Magistrate it is unnecessary to consider whether the Magistrate had possession or merely custody of the goods. The suggestion that the goods continued to be, at that stage, in the possession of the accused does not embody a correct appreciation of the law as regards possession. A 'seizure' under the authority of law does involve a deprivation of possession and not merely of custody and so when the police officer seized the goods, the accused lost possession which vested in the police. When that possession is transferred, by virtue of the provisions contained in Section 180 to the Customs authorities, there is no fresh seizure under the Customs Act. It would, there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to have the appeal admitted on a wrong premise of fact by untruly suggesting in the question formulated at the time of admission that "admittedly, the seizure was initially made by Railway Protection Force and subsequently handed over to the customs". Mr. Saraf added that the appellant suppressed the fact that a Seizure List under Section 110 of the Customs Act was prepared by the Inspector, Kaliachak, Customs, Preventive Unit in the presence of witnesses at the time of seizure of the goods. The appellant has also signed the seizure list. Mr. Chakrabarti submitted that the seizure list also contains the signatures of Sri Dilip Kumar Hazra, Officer-in-Charge, Farakka Police Station, Sri Hiren Kumar Sarkar, Officer-in- Charge, Farakka GPRF and the place of seizure is Farakka Police Station as would appear from the seizure list itself. The question for consideration is whether the goods, gold in this case was, were seized from the appellant by the customs officer or by the police. The fact that the goods were seized by the customs officer from the appellant finds corroboration from the statements made by the appellant soon after the seizure on 10th September, 1994 and the subsequen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods [or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the case of imported goods the duty chargeable thereon. [(2) Where any fine in lieu of confiscation of goods is imposed under sub-section (1) the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods.]" Mr. Saraf, learned advocate appearing for the respondent, submitted that this question was neither raised before the Commissioner nor before the learned Tribunal. He added that 'gold' at the relevant point of time was within the list ..... X X X X Extracts X X X X X X X X Extracts X X X X
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