TMI Blog1981 (12) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... sed were found secreted. Entertaining a reasonable belief that the said bottles (M.Os. 1 to 68) are liquor of foreign origin and smuggled and, therefore, liable for confiscation, they were seized by the officers along with the car under a panchanama, Ex. P. 6. The bottles were valued at Rs. 13,600/-. The accused failed to produce any documentary evidence to show that the seized bottles were not smuggled goods. The first accused gave a statement, Ex. P 7 admitting that the seized foreign whisky bottles belonged to him. The second accused also gave a voluntary statement, Ex. P. 11, in the presence of the mediators admitting the seizure of 68 bottles of foreign whisky in his house or dicky of his car and denying any knowledge of the bottles found in the house or dicky of the car. A sample of the liquor seized from the house of the accused was sent to the Chemical Examiner of the Government for Excise, Andhra Pradesh (P.W. 4), for examination and opinion. The Chemical Examiner after examining the samples expressed his opinion that the whisky seized was foreign in origin. The Assistant Collector of Customs and Central Excise, Hyderabad, confiscated the 68 bottles of whisky and the car u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be the owner of the goods so seized. (2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." Then the relevant section is 2(39), which reads thus : "2(39) `smuggling' in relation to any goods, means any act or omission which will render such goods liable to confiscation under Section 111 or Section 113." Section 111 deals with the confiscation of improperly imported goods. For our purpose, sub-section (p) of Section 111 is relevant. It reads thus : "111. The following goods brought from a place outside India shall be liable to confiscation : * * * * (p) any notified goods in relation to which any provisions of Chapter IV-A or of any rule made under this Act for carrying out the purpose of that Chapter have been contravened." 7. Chapter IV-A provides for the detection of illegally imported goods and prevention of the disposal thereof. Section 11A(d) defines `notified goods' to mean goods specified in the notification issued under Section 11B. Section 11B empowers the Central Government to notify good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscation under Section 111 he shall be punishable - (i) in the case of an offence relating to any of the goods to which Section 123 applies and market price of which exceeds one lakh of rupees, with imprisonment for a term which may extend to seven years and with fine : provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than one year; (ii) in any other case, with imprisonment for a term which may extend to three years or with fine, or with both." The question of dealing adequately and swiftly with the economic offences was considered by the Law Commission of India in its Forty-Seventh Report. Dealing with the trial and punishment, the Law Commissioner observed in paragraph 3.13 : "3.13. These offences, affecting as they do the health and wealth of the entire community, require to be put down with a heavy hand at a time when the country has embarked upon a gigantic process of social and economic planning. With its vastness in size, its magnitude of problems and its long history of poverty and subjugations, our Welfare State needs weapons of attack on poverty, ill-no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Special Courts for the effective and speedy prosecution of economic offences, a Special Judge's Court at Hyderabad presided over by an Officer in the cadre of District and Sessions Judge for the trial of economic offences under the specified Central Act arising throughout the State of Andhra Pradesh, was established by the State Government on the recommendation of the High Court. With this background, let me proceed to consider the scope of Section 123 of the Act. 11. There is no dispute that in view of the Notification, Exs. P. 2 and P. 3, alcoholic liquor is one of the notified goods under Section 11B of the Act and the provisions of Section 123 relating to burden of proof of goods seized under the Act in the reasonable belief that they are smuggled goods, are made applicable to whisky also by Ex. P. 2. Therefore, whisky of foreign origin is liable to confiscation under Section 111(p) of the Act. 12. The question then that arises is whether the seizure of M.O.s 1 to 68 made by P.W. 2 was in the reasonable belief that M.O.s. 1 to 68 were smuggled goods. `Belief' is, after all, a condition of mind which can be expressed either through words or through a course of conduct. Belie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the matter to the disciplinary committee, that it had reason to believe, as prescribed by the Statute." Therefore, it is necessary to examine whether the circumstances established in this case are sufficient to raise the reasonable belief under Section 123 of the Act that the goods seized are smuggled goods. 14. To prove that it is so, the prosecution relied on the evidence of P.W. 2, the Superintendent of Customs and Central Excise (Preventive) Hyderabad, P.W. 4 the Chemical Examiner for the State Excise Department, and Exs. P. 9 and P. 11, the confessional statements of A1 and A2 respectively recorded under Section 107 of the Act. P.W. 2 deposed that on 13-3-1974 he along with his Inspectors searched the residence of A. 2 after serving a search warrant on A-2, the owner of the house. During the search the witness found 56 bottles of Scotch Whisky in five boxes in the living room on the eastern side of the building and 12 bottles from the dicky of the car which was parked in the garrage. In all he seized 68 bottles of Scotch Whisky. He found the seals on the bottles intact. When he asked the accused to produce the bills or vouchers to show the legal possession, they stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of foreign origin. The Supreme Court in Balumal Jamandas v. State of Maharashtra (3) A.I.R. 1975 Supreme Court, 2083 while dealing with the presumption under Section 123 of the Act, observed : "The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into India very recently from another country. The inscriptions on them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The conduct of the accused, including his untruthful denial of their possession, indicated consciousness of their smuggled character of mens rea." 15. In State of Maharashtra v. Natwarlal (4) A.I.R. 1980 Supreme Court 593 the Supreme Court held that the following circumstances, namely, (a) the gold biscuits in question bore markings which proclaimed their foreign origin; (b) this gold was of 24 carat purity which was not available in India at the material time; (c) these gold biscuits were found concealed and stitched in the folds of a jacket specially prepared for this purpose; (2) the gold was in the shape of gold b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isky. 17. The provisions of Section 123 are procedural in nature. It relates to burden of proof and raises a presumption in respect of goods mentioned in the section and further the object of the Act, namely, the prevention of smuggling. There is abundance of authority for the preposition that procedural provisions of law can be retrospective. No person has vested right in any course of procedure. He has only the right of prosecution of defence in the manner prescribed for the time being. If there is any change in the mode of procedure, he has no other remedy than to proceed according to the altered procedure. In other words, a change in the law of procedure operates retrospectively and unlike substantive law which is only prospective. [Vide : Colonial Sugar Refinery Co. Ltd. v. Irving (1905) A.C. 369; Anant Gopal Sheerey v. State of Bombay, A.I.R. 1958 S.C. 915; and Narahari v. Pannal, A.I.R. 1977 S.C. 164]. This court in Rasheed Abdullah v. State of A.P. (6) (1978) II An. W.R. 469 observed : "Whether the goods seized are smuggled goods or not will have to be decided later in an enquiry that will have to be conducted in accordance with the procedure laid down by the Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n to the seizure of the 68 bottles of foreign liquor from the room of A-1 and from the dicky of the car. He has also stated in his evidence that A-1 had made a confessional statement in his presence that he had purchased the foreign whisky bottles from one person and the said person had not passed on any receipt. Therefore, there is no reason why the evidence of P.W. 3 should be distrusted. 19. In Assistant Collector of Customs v. P.R. Sait (7) 1972 Crl. L.J. 135, K. Sadasivan, J., held that the search by a person not authorised under Section 105 of the Act was illegal. But the Supreme Court in State of Maharashtra v. Natwarlal (4) A.I.R. 1980 S.C. 593 observed : "Assuming argued, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs Authorities or the validity of the trial which followed on the complaint of the Asst. Collector of Customs." In so holding, the Supreme Court relied upon two of its earlier decisions. In Radhakrishnan v. State of U.P. (8) A.I.R. 1963 S.C. 822, Mudhalkar, J., speaking for the Court observed : "So far as the alleged illegality of the search mis-concerned, it is sufficient t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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