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TMI Blog2023 (10) TMI 764X X X X Extracts X X X X X X X X Extracts X X X X ..... of 60/2 Babulal Lane, Kolkata. On 18th and 19th May, 1956 the Defendant no. 1, the Union of India through its servants and agents lead by the Defendant no. 2 broke open and entered into the rooms of the Plaintiff no. 1 and 2 in the premises no. 1B, Halwasia Road, Kolkata and seized and carried away gods and articles as detailed in schedule 'A', 'B' and 'C' of the plaint. The Plaintiff no. 1 and 2 were present. They protested seizure and carrying away of goods by the Defendant no. 2 and other servants and agents of the Defendant no. 1, Union of India. The goods belonging to the Plaintiff no. 3 was kept in the safe custody of the Plaintiff no. 1. The Defendant no. 6 also protested against the said seizure. It is further averred in the plaint that after such seizure the customs authorities continued to detain goods, save and except the Defendant no. 3 purported to make release order of the goods detailed in Schedule 'D' of the plaint which had been so seized. The then Income Tax Officer, District (1), on behalf of the Defendant no. 1 detained the goods on the pretext of income tax due. In nutshell, the goods and articles, as detailed in the schedules of the plaint, were not return ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en to confiscate the goods in case of failure to give satisfactory evidence that the articles were legally imported into the country. In the said show-cause memorandum, in the light of submissions made by the original Defendant no. 6, benefit of doubt was expressed in respect of the articles mentioned in Schedule 'D' of the plaint. These articles were ordered to be released. But the order of release could not be given effect to as, in the meanwhile, order of attachment in execution dated 29th may 1956 was received from the Certificate Officer and Additional District Magistrate, 24 Parganas, Calcutta and from the Income Tax Authorities prohibiting release of any jewellery or other articles seized from the original Defendant no. 6. It is the case of the present answering Defendant no. 1 - 4 that the original Defendant no. 6 was the owner of the articles who adopted dilatory tactics for obstructing the finalization of the adjudication proceeding. So far as the articles mentioned in Schedule 'A', 'B' and 'C' are concerned. The original Defendant no. 6 did not adduce any evidence to establish legal importation of the articles in question. On or about 5th October 1956, 21st January 1957, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed: 1(a) Are the Plaintiff no. 1, 2 and 3 are the owners of the goods set out respectively in Schedule 'A', 'B' and 'C' of the plaint? (b) Were the goods in possession of the Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure in suit? 2. Were the proceedings for search and seizure contrary to (a) law (b) procedure applicable thereto? 3(a) Did the Plaintiff no. 1 or Plaintiff no. 2 protest against any (i) alleged trespass or (ii) seizure or (iii) carrying of the goods as alleged in the plaint? (b)(i) Were the goods belonging to Plaintiff no. 3 kept for safe custody with Plaintiff no. 1? (ii) Did the Plaintiff no. 1 protest in respect of such goods? 4. Did the Defendant no. 3 maliciously or wrongfully fail or refuse to release the goods in Schedule D of the plaint? 5. Have the Plaintiffs been wrongfully deprived of their goods and effects? 6(a) Is it estimated aggregate value of the articles enumerated in Schedule 'A', 'B' and 'C' as Rs. 311425/-, Rs. 10,000/- and Rs. 7000/- respectively? (b) If not, what are the respective values? 7. Have the Plaintiffs suffered any damages? 8. Was the notice under Section 80 of C.P.C. was a) valid b) suff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rring to the decision of a connected suit Manton & Company Limited vs. Union of India [(1984) 18 ELT 753] Mr. Roy submitted that in that suit the Single Bench held that neither under the Sea Customs Act nor under the Income Tax Act title of the properties can be decided. In that suit the Single Bench of this Court held that Civil Court has the jurisdiction to decide on and pass declaratory decree on the ownership of the properties. Per contra, the Learned Counsel for the Defendant no. 1 - 5 argued that decision of Manton & Company Limited (supra) has no application in this case in view of a recent judgment of the Hon'ble Supreme Court of India in Additional Director General of Central Excise Vs. Kiran Machines [2015 (325) E.L.T. 469 (SC)] where the Apex Court held that jurisdiction of the Civil Court is barred where an enactment contains machinery and provisions of adjudication and further appeals. More so the facts of Manton's case were different and that suit was decided on the facts and circumstances specific to that. I have heard rival submissions. Sea Customs Act, 1878 enacted with a specific object. The preamble of the Act says: "whereas it expedient to consolidate and am ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is a third class viz. where a liability not existing at common law is created by a statute which at the same time gives a special and particular remedy for enforcing it. The remedy provided by the statute must be followed and it is not competent to the party to pursue the course applicable to cases of the second class." Referring to judicial precedents, point of law was summed up as follows: "35. Neither of the two cases of Firm of Illuri Subayya or Kamla Mills can be said to run counter to the series of cases earlier noticed. The result of this inquiry into the diverse views expressed in this Court may be stated as follows: (1) Where the statute gives a finality to the orders of the special Tribunals the civil courts' jurisdiction must be held to be excluded if there is adequate remedy to do what the civil courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the sch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e [(2006) 1 SCC 54] it was held that jurisdiction of the Civil Court is not completely ousted. The Apex Court decided that it is well-settled that there is a presumption that a civil court will have a jurisdiction and the ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of civil court is sought to be barred under a statute, the civil court can exercise jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. The Bench relied upon the ratio of Dhulabhai's case. In Additional Director General, Director General of Central Excise Vs. Kiran Machines [(2016) 16 SCC 580] the Supreme Court of India followed the same ratio of Dhulabhai's case and held that the Central Excise Act provide complete machinery for adjudication of show-cause notice. In that factual sceneries it was held that jurisdiction of Civil Court is barred. In Manton and Co. Ltd. v. Union of India, [1978 SCC OnLine Cal 559], it was held by a Co-ordinate Bench of this Court in a connected suit: "20. One of the questions in this suit is whether the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t respectively in Schedule 'A', 'B' and 'C' of the plaint and Issue no. 1(b) is whether the goods wherein possession of Plaintiff no. 1 and the Plaintiff no. 2 at the time of seizure. The original Plaintiffs who claimed the ownership of the articles must prove the same. Burden of proof is on the person who desires a court to give judgment as to their legal rights (Section 101 of the Indian Evidence Act). Mr. Roy, the Learned Counsel for the Plaintiff argued that it is a trite law that even in an absence of documentary evidence showing title, the person who is in possession is deemed to be the owner of the goods. He referred to the decision of the Supreme Court of India in Shiv Shankara & Anr. -VS- HP Vedavasa Char [(2023) SCC Online SC 358] referring to the original evidences of the original Plaintiff no. 1 and original Plaintiff no. 3. He submitted that original evidences of these two witnesses consistently identified the ornaments and jewelleries as referred to the Schedule 'A', 'B' and 'C'. It is stated in the evidence by the original Plaintiff no. 1 and Plaintiff no. 3 how the articles and jewelleries were obtained by them. Other two witnesses, namely, Chinmoy Mallick and Mad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proof and on whom such burden of proof lies. Section 102 states that burden of proof should in a proceeding lies on that person who will fail if no evidence is at all given on either side. Section 106 is also relevant to consider in this context. According to the Section 106 when any fact is specially within the knowledge of any person burden of proof of that fact is upon him. The statute never states that any specific or particular kind of evidence is to be tendered to discharge burden of proof. Evidence can be either documentary or oral; even if there is absence of any documentary evidence but only oral evidences are adduced it cannot be said that burden of proof is not discharged. However, that may be relevant while considering the weight of the evidence, its probative value, cogency or reliability. PW 1, the original Plaintiff no. 1 deposed before this Court that some of the ornaments belonged to her, some to Manton & Company, some to the original Plaintiff no. 2 and certain articles to the original Plaintiff no. 3. She identified that the loose stones in boxes marked as "J & K Company". Ext. 11 & 12 were presented to the original Plaintiff no. 1 at the time of her marriage. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Defendant no. 6 smuggled those articles; the said original Defendant no. 6 were the owners of the jewelleries, he was connected with steamship line and that he could not give satisfactory reply of acquisition and possession of the articles. In course of cross-examination DW 1 stated that gold, diamonds, some jewelleries and watches were smuggled into the residence of the original Defendant no. 6. He could not remember whether the information was oral or written statement. He stated that information was received by Mr. Srivastava, one of the officers of the Department. DW 1 could not tell whether there was any record of receiving information by the department; he did not states who verified information so received. He admitted that remarks signature in the search list was penned through. When asked whether any investigation was made to ascertain the ownership of the articles, the only answer was that keys were brought by the original Defendant no. 6; at the time of such possession aspect was also considered. He further stated that the diamonds appear to be new but he was not a jewelry expert; if one was with soap or proper chemicals, diamonds look like new one. He further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o statutory provision to the contrary. But, in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth, and - as Prof. Brett felicitously puts it - "all exactness is a fake". El Dorado of absolute proof being unattainable, the law accepts for it probability as a working substitute in this work-a-day world. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof; often it is nothing more than a prudent man's estimate as to the probabilities of the case." Testimony of Plaintiffs' witnesses clearly established that the articles belonged to the Plaintiffs variously. Absence of documentary evidence is not fatal as because law does not demand a prefect prove. Law does no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d (b) is questions of fact. Although DW1 stated that the original Plaintiff no. 1 was a pardanshin lady and she did not enter into the rooms when search was going on, PW 1 the original Plaintiff no. 1 Tribeni Devi and another Plaintiff's witness Chinmoy Mallick deposed that Plaintiff no. 1 and 2 challenged and protested the seizure of ornaments on being present there. The original Plaintiff no. 1 deposed that ornaments of Plaintiff no. 3 were kept with her the original Plaintiff no. 3 also deposed that she kept her ornaments with the Plaintiff no. 1. There is no evidence to the contrary. Therefore, the said facts are established and issue no. 3(a) and (b) are decided in favor of the Plaintiff. Issue no. 4 and 5 are whether the Defendant no. 3 maliciously or wrongfully failed or refused to release the goods in Schedule D of the plaint. Issue No. 7 may be considered together. The original Plaintiffs prayed for damages in this case. Therefore, consideration of this issue becomes relevant. As appears from the evidence of DW 1 that on getting information and on suspicion, they made a raid in exercise of authority given under Sea Customs Act, 1878. The original Plaintiffs did not adduce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no evidence that any oblique motive goaded the original Defendants or that colorable exercise of authority was involved. No evidence is there that the very procedure of search and seizure was challenged or declared illegal. In absence of anything else there cannot be departure from the conclusion that the Defendant authorities exercised powers in good faith without any malice whatsoever. Therefore, issue no. 4, 5 and 7 are decided against the Plaintiffs. As discussed above, there was neither malice on the part of the Defendants nor was mala fide exercise of power and authority. The Defendant authorities exercised powers in good faith in exercise of lawful authority. No evidence was adduced to establish that the original Plaintiffs suffered damages. Therefore, it cannot be concluded that the original Plaintiffs suffered any damages. Apart from this, it is not argued that right to sue for damages survive on death of the original Plaintiffs. Therefore, it cannot be concluded that the original Plaintiffs suffered any damages. This issue is decided against the Plaintiffs. Issue no. 6(a) and (b) are not pressed by the Learned Counsel for the Plaintiffs. Issue No. 8 (a) and (b) are ..... X X X X Extracts X X X X X X X X Extracts X X X X
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