TMI Blog1961 (11) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellants could properly be disposed of. The appeal is accordingly allowed and the order of the High Court set aside. The case will be remitted to the High Court for the revision petition of the appellants being disposed of in the light of this judgment and in accordance with law - 194 of 1960 - - - Dated:- 13-11-1961 - Mr. Justice P.B. Gajendragadkar, Mr. Justice A.K. Sarkar, Mr. Justice K.N. Wanchoo, Mr. Justice K.C. Das Gupta and Mr. Justice N. Rajagopala Ayyangar [Judgment per : Ayyangar, J.]. - The three appellants were convicted by the First Class Magistrate of Jullunder of an offence under Section 167(81) of the Sea Customs Act for having acquired possession of smuggled gold, and for carrying, keeping and concealing the said gold with intent to defraud the Government knowing that the gold had been smuggled into India from a foreign country and that no duty had been paid thereon, and were sentenced to terms of imprisonment. Appeals were filed by the accused to the Sessions Judge, Jullunder but the convictions were upheld though the sentence was reduced in the case of the third appellant. A revision petition preferred therefrom to the High Court of Punjab wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Section 167(8). 4. During the proceedings before the Customs authorities for confiscation, sanction was accorded to prosecute the appellants for an offence under Section 167(81) which runs in these terms : 167. The offences mentioned in the first column of the following Schedule shall be punishable to the extent mentioned in the third column of the same with reference to such offences respectively :- Offences Sections of the Act to which offence has reference Penalties (1) (2) (3) If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which are chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eyance in which it is being carried shall nonetheless be deemed to be a bringing, or as the case may be, sending into India of that article for the purposes of this section. On the same day on which the Act came into force a notification was issued under this section reading : (1) Restrictions on import of gold and silver :- In exercise of the powers conferred by sub-section (1) of Section 8 of the Foreign Exchange regulation Act, 1947 (Act 7 of 1947) and in supersession of the notification of the Government of India in the late Finance Department No. 12(II) FI/47, dated the 25th March, 1947, the Central Government is pleased to direct that except with the general or special permission of the Reserve Bank, no person shall bring or send into India from any place outside India - (a) any gold coin, gold bullion, gold sheets or gold ingot whether refined or not............. *** virtually therefore a ban was imposed on the import of gold into the country. This prohibition naturally resulted in the rise of the internal price of gold compared to its external price, i.e., its price in the international markets and this gave a great incentive to smuggling in the commodit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the stealing or receiving of such things has been made, or an enquiry connected with such stealing or receiving is in progress, and there detain such things until the dismissal of such complaint or the conclusion of such enquiry or of any trial thence resulting. In every such case the Police-Officer seizing the things shall send written notice of their seizure and detention to the nearest custom-house; and immediately after the dismissal of the complaint or the conclusion of the enquiry or trial, he shall cause such things to be conveyed to, and deposited at, the nearest Customs-house, to be there proceeded against according to law. 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 of the second paragraph of Section 180 are goods which have been seized under the Act within the opening words of Section 178A. In the first place, it would be seen that these three sections which have to be read together, draw a distinction between seizure under the Act and a seizure under provisions of their laws. A seizure under the Act if one for which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, therefore, follow that, having regard to the circumstances in which the gold came into the possession of the Customs authorities, the terms of Section 178A which requires a seizure under the Act were not satisfied and consequently that provision cannot be availed of to throw the burden of proving that the gold was not smuggled, on the accused. 10. Though the learned Magistrate held that Section 178A applied to the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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