TMI Blog1965 (10) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... monds, believed to be foreign cut diamonds, were found on his person. They were, therefore, seized. There was a safe in the shop the key of which was with the proprietor, who was not present the. The safe was,. therefore, sealed. One of the enforcement Officers then telephoned to a Custom Officer about the seizure of the diamonds. Two Custom Officers then went there, but as the panchanama had been already made and as the diamonds had been already taken charge of and also sealed, they did not themselves seize them. They, however, started holding investigation in regard to these diamonds. A summons under section 108 of the Customs Act was served upon the appellant and his statement was also recorded. (2) On the following day, 24th July, 1964, the safe was opened. It was found to contain seven packets of diamonds and currency notes of the value of ₹ 24,055. All these articles were seized by the officers of the Enforcement Directorate. Out of these seven packets, one was claimed by J. C. Mehta, the appellant in appeal No. 3 of 1965 and five were claimed by J. A. Mehta, who is the appellant in appeal in appeal No. 5 of 1965. All the packets of diamonds remained in the custody o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xtended the period by three months on 4-3-1965. On 27th May 1965 the period was further extended by three months. We have been informed that as required by section 124 notices to show cause why the goods should not be confiscated or penalty imposed, have since been issued to the appellants. Those proceedings are not pending before the Customs Authorities. (5) Section 151 of the Customs Act empowers the officers mentioned in the section to assist officers of customs in the execution of this Act. The officers of the Enforcement Directorate acted under this section read with the notification issued by the Central Government on 23rd may 1964, when they seized the diamonds claimed by the appellants, on 23rd and 24th July 1964 Mr. Sorabjee, the learned counsel for the respondents has, however, fairly conceded before us that he is unable to justify the seizure of the diamonds under the provisions of section 151. No other provision of law has been pointed to us under which the diamonds could have been seized or taken charge of by the officers of the Enforcement Directorate. The seizure of the diamonds on 23rd and 24th July 1964, therefore, appears to have been without authority of law. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appeared to have been illegally imported. In paragraph 26 it has been stated that they were seized by the Customs Officers in the reasonable belief that they were smuggled goods. In his affidavit, however, the Collector of Customs has not mentioned the materials, which led the proper Customs Officer to entertain the belief that the diamonds are liable to confiscation under the Act. In paragraph 28 of his affidavit, he has stated that the question whether the diamonds were seized under a reasonable belief that they were smuggled or not is not relevant at this stage and that it would be relevant only during the adjudication proceedings. This observation made by the Collector is not correct. When the action of the Collector in seizing the goods under section 110 is challenged in a writ petition the Collector must satisfy the Court that the requirements of section 110 had been complied with. We would, therefore, have asked the Collector to file a supplementary affidavit and disclose the relevant materials, but we have decided not to do so, as show cause notices have already been issued to the appellants and adjudication proceedings are pending, in which the appellants can raise this po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection applied are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. The Supreme Court held that a seizure under the Act is one for which the authority to seize is conferred by the Act and that in the context it could be referred to as a seizure under section 178, which corresponds to section 110 of the new Customs Act, 1962. The Supreme Court further held that the transfer of the possession of the goods to the Customs Authorities by virtue of the provisions contained in section 180 of the Sea Customs Act did not constitute a fresh seizure or a seizure within the meaning of section 178-A of the Act so as to shift the burden of proof on the appellants. Under section 178-A the burden of proving that the goods are not smuggled goods can be placed on a person only if the goods are seized from his possession. In Gian Chand's case the Customs Authorities had no seized the goods from the possession of the appellants. The Supreme Court held that they could not, therefore, be called upon to prove that the goods were not smuggled goods. Thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (2) of section 110 are within six months of the seizure of the goods . In such provisions the word of has been held to be equivalent to from :see Willims v. Burgess and Walcot, (1840) 12 Ad El 635. In that case section 1 of the relevant statute enacted that warrants of attorney shall be filed within twenty-one days after the execution Section 2 enacted that unless they were filed as aforesaid within the said space of twenty-one days from the execution, they and the judgment thereon shall be void subject to the conditions specified in the section. The warrant of attorney was executed on 9th December, 1839 and it was filed, and judgment entered up on the 30th December. It was held that in computing the period of 21 days the day of the execution must be excluded. Reliance was placed on Ex parte Fallon, (1793) 5 Term Rep 283 in which the word used was of and not from It was observed that of , from and after really meant the same thing and that no distinction could be suggested from the nature of the two provisions. In Stroud's Judicial Dictionary, Vol, 3, 1953 Edition in Note (5) under the word of , it has been observed that of is sometimes the euqivalent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s been before suggested reduce the time to one day, and then see what hardship and inconvenience must ensure if the principle I have stated is not to be adopted; observed and these remarks are entirely applicable to the present case. The result of reducing the time to one day would be that an offence midnight be committed a few minutes before midnight, and there would only be those few minutes in which to lay the complaint, which would be to reduce the matter to an absurdity. These remarks would apply with equal force in the present case. Let us consider what the position would be, if the notice was required to be issued within one day of the seizure of the goods and not within six months thereof. The result may then be that if the goods were seized say five minutes before midnight, the time available for issuing the notice would be only five minutes or less which may be too short for this purpose. To avoid such a result, which may in certain cases make the section nugatory, the day of seizure should be excluded in computing the period of limitation. (12) Mr Poonawalla has urged that while this may be the position in English Law, in India we are governed by section 9 of the G ..... X X X X Extracts X X X X X X X X Extracts X X X X
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