TMI Blog1972 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... was plugged with a loose brick. Ext. P-l. the search list was prepared, giving a copy of it to the accused. The accused's statement (Ext. P-3) was also taken. After, that the person of the accused was also searched, and Ext. P-4 report was made by P. W. 4 to the Assistant Collector of Customs. The latter issued a show cause notice to the accused, and confiscated the articles as contraband articles. The Collector of Customs then issued sanction to prosecute the accused, and the case was accordingly charged before the Magistrate. The learned Magistrate convicted the accused under Section 135 (b)(ii) of the Customs Act (in short the Act) and sentenced him to Simple Imprisonment for two months, and a fine of ₹ 300/-which was set aside in appeal by the District Magistrate. The complainant has. therefore, come up in appeal against the acquittal. 2. Learned Appellate Magistrate has entered the acquittal mainly on the ground that the prosecution did not succeed in proving accused's possession of the articles. The search and recovery of the articles was also held to be illegal. Learned counsel for the appellant was at pains to show that the search and seizure was legal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs. It is a printed form which reads: Whereas I have reason to believe that goods liable to confiscation ...are secreted in the residence of Sri. M. Pratap Sait at XVI/644 and 645, Broadway. Ernakulam, I hereby authorise Sri C. M. Isaac, Preventive Officer, Customs, Cochin-3 to search the above premises. Before action is taken under Section 123 of the Act it is necessary that the proper officer should entertain the belief that the goods are liable to confiscation under the Act. The significant word is 'belief and not 'suspicion'. In M. G. Abrol v. Amichand . it was observed at p. 1073 that a belief in the existence of a thing requires a more solid foundation than in the case of a mere suspicion and that the belief must be such as any reasonable man in the circumstances of the case would entertain about the existence or non-existence of a thing. It was also held that belief must be entertained at the time when the goods are seized. . In the Court held further: The contention that the reasonable belief, which is contemplated by Section 178-A may either be the belief in the mind of the Inquiry Officer at the stage of the Inquiry, or in the mind of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed was smuggled. So also in the present case, as stated earlier, there is no mention in Ext. P-6 that gold was secreted. But in the complaint by the Assistant Collector. it was stated that the information received was that gold was secreted. This cannot be true, as in such a situation he would have stated in the authorisation itself that the information received was that gold was secreted. Ext. P-4 is the report dated 1-8-1967 filed by P. W, 1. Therein, we see no mention as to the reasonable belief. Neither P. W. 1, nor P. W. 4 has stated before court as to the nature of the belief entertained by them. The Allahabad High Court in Seth Brothers v. Income-tax Commr. in dealing with Section 132 of the Income-tax Act, 1961 which is a similar provision, observed: The search and the seizure in this case leave no room for doubt that the Income-tax Officer did not at all apply his mind, and formed no opinion regarding the relevancy or usefulness of the account-books and documents for any proceedings under the Income-tax Act of 1961, Many documents were not examined, or even looked into. It is no excuse for the non-observance of the requirements of law that the number of books and doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling in contraband gold. But in Ext. P-6 we see no statement that such an information was received. In the circumstances it is difficult to hold that Section 123 of the Act was strictly complied with so as to shift the burden on the accused. The materials available in the case do not show that before the authorization was issued to search the premises of the accused, the officer who issued the authorization, had the reasonable belief that smuggled gold was secreted in the premises of the accused. Of course, the non-compliance of this requirement of the section can amount only to an irregularity; the search that followed, cannot on that account be said to have been vitiated. All the same, it must be said as observed in (cited already) that it was advisable, and indeed proper to have satisfied the court of the reasons for the belief if at all, any belief was entertained. 6. It must also be said that the prosecution has not succeeded in showing that what was seized was gold, The article was tested by one Mathew. and his report is Ext. P-5. That Mathew was not cited as a witness in the case. In his place, one Ramaswamy was examined and Ext. P-5 was proved through him. Ramaswamy p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tly relied on the fact that the gold in question had marks of foreign origin. It is well settled that mere markings could not be taken as proof of the fact of the foreign origin of the goods as such marking and labels would be hearsay evidence. In Comptroller of Customs v. Western Electric Co. Ltd., 1966 AC 367, their Lordships of the Privy Council in terms held at p. 369 that such marking must be excluded from consideration as being no more than hearsay. It would therefore, be unwise from the markings alone to be drawn to the conclusion that the article is of foreign origin. It is also incumbent on the prosecution to fasten the accused with the necessary knowledge as contemplated in Section 135 of the Act to hold him guilty of the offence. The section deals with penal action against the accused over and above the confiscation of the goods, and other steps provided in the Act. Section 135 provides that for the imposition of the penalty it must be shown that the accused was knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or had acquired possession of or in any way concerned in carrying, removing, depositing or purchasing etc., of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession of the accused of the premises has not been proved. The accused even according to the prosecution, is in possession as a tenant. The owner has not been examined to show that the accused is his tenant, and that he is in possession of both the buildings. Nos. XVI/644 and 645. M. Os. 2 and 3 were recovered from Door No. XVI/644 which is the refinery. It is stated that these articles were kept in a tin concealed in a hole inside the chimney which was plugged with a loose brick. Being a refinery, the place is accessible to all and sundry. Where illicit opium was recovered from a motor garage belonging to the accused, it was held that even assuming that the accused used to keep his car in the garage and the same was in his possession, still it was incumbent upon the prosecution to establish that the accused was in conscious possession of the opium in question. A conviction cannot be entered in the absence of evidence to establish a connection between the accused on the one side, and the opium, on the other. (State of Himachal Pradesh v. Buti Nath. . Neither P. W. 1 nor P. W. 4 had any personal knowledge about the possession of the building. Possession could easily hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overed from the possession of the accused; in other words, the accused was in exclusive possession of the building where the articles were recovered. 12. The search was also illegal, in that it was made by a person not authorised under Section 105 of the Customs Act. Under the section, the Assistant Collector of Customs is given the power to authorise any officer of Customs to search when he has reason to believe that goods liable to confiscation are secreted in a particular place. He may himself search, or may authorise an officer of Customs to search. In the present case, the person authorised by the Assistant Collector was P. W. 4. but the search was conducted and M. Os. 2 and 3 recovered by P. W. 1 who had no authorisation. This is illegal. P. W. 4 would try to legalise the search, saying that he had given oral instructions to P. W. 1 to search. There is no provision in the Act allowing such delegation of duty. The search is therefore, one not in accordance with the Sea Customs Act. The search is vitiated by another circumstance also. Section 103 (2) provides that in making searches under the Act the Code of Criminal Procedure relating to searches shall, so far as may be, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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