TMI Blog1978 (3) TMI 112X X X X Extracts X X X X X X X X Extracts X X X X ..... tten statement. They deny that the plaintiff is the owner of the said articles. They also deny the validity or sufficiency of the notice under Section 80 of the Civil P.C. and contend that the suit is not maintainable under the Sea Customs Act, 1878. 3. The defendant No. 5, the Income Tax Officer concerned has filed a separate written statement. He has alleged inter alia that a prohibitory order has been issued on the Customs Authorities restraining them from delivering the articles seized, as the same were under attachment for Income-tax dues of the defendant No. 6. 4. The defendants Nos. 6 and 7 had filed separate written statements and it appears therefrom, neither claimed ownership to the said articles. The defendant No. 7 did not appear at the hearing. The following issues were raised and settled at the trial :- 1. Is the plaintiff the owner of the goods in suit ? If so, are the goods liable to be returned to the plaintiff as claimed in prayer 2 of the plaint ? 2. Is the suit maintainable in view of the provisions of the Sea Customs Act? 3. (a) Was the notice under Section 80 of the Code of Civil Procedure duly served on the defendants Nos. 1 to 4 ? (b) To what ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e plaint by registered post with acknowledgment due. Postal acknowledgments were received back from each of the defendant Nos. 1 to 5 but the same have been misplaced or lost. He produced entries in his cash book Exhibits 'U' to show that on May 14 and 15, 1957 registered letters were sent to the defendant Nos. 1 to 5. 7. For the defendant Nos. 1 to 4 one Sankar Prosad Ghosh was called as a witness. The search at the residence of the defendant No. 6 was conducted in his presence in May 1956. He proved the search and/or inventory list Exhibit '4' which was written and signed by one S.K. Sen. The defendant No. 6 signed the search list below the words "signature of the owner of the articles seized". He however admitted that the words 'signature of the owner of the goods seized had been penned through. He had no personal knowledge as to who was the owner of the said articles. He admitted that S.K. Sen who prepared the search list would be the proper person to explain in what context the word 'owner' was used in the document. He admitted that the defendant No. 6 had stated that some of the articles seized belonged to Arlington Co. whose tags statement of the defendant No. 6 was reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Hari Kishan v. Administrator Municipal Committee, Ludhiana reported in AIR 1963 SC 1547 and Tejman v. D.P. Anand reported in AIR 1965 Cal. 517. 12. The next limb or Mr. Banerjee's arguments was that the goods seized were liable to confiscation which was a remedy in rem against the goods seized and therefore the question of ownership was immaterial. For this proposition he cited Sewpujanrai Indrasanarai Ltd. v Collector of Customs reported in AIR 1958 SC 845 = 1983 E.L.T. 1305 and Pukhraj v. D.R. Kolhi reported in AIR 1962 SC 1959 = 1983 E.L.T. 1360, the last was cited for the proposition that goods imported contrary to statutory restrictions were liable to be confiscated even if the person in possession was not concerned with the importation thereof and under Section 178-A the onus was on the person in possession to prove that the goods seized were not smuggled goods. He also cited Babulal v. Collector of Customs reported in AIR 1957 SC 877 where the Supreme Court held that the question of ownership of goods was irrelevant in the context of procedure for confiscation, and the decision Maqbool Hussain v. State of Bombay reported in AIR 1953 SC 325 = 1983 E.L.T. 1284 where the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has rightly contended that the evidence adduced on behalf of the plaintiff as to the ownership of the disputed articles have not been controverted. Neither the entrustment of the articles to the defendant No. 6 nor the latter's connection with the plaintiff has been challenged or disputed. Mere suggestion of an "inside transaction" can be of no assistance to the defendants unless established. Mr. Ray submitted further that the inspection notes did not indicate that any contract had been concluded between the parties. In any event, the said Inspection notes did not constitute evidence of a contract of sale. He cited Weiner v. Gill, Some v. Smith reported in (1906) 2 KBD 574, the facts wherein were more or less similar to the facts of the present case. On the authority of the said decision he contended that it was clear from the Exhibits 'A', 'B', 'C', and 'D' that the articles would remain the property of the plaintiff unless invoiced. 17. Mr. Ray next contended that if anything was seized without authority of law, it must be returned and in support of this proposition cited Collector, Central Excise, Allahabad v. Kasi Nath Jewellers, reported in AIR 1972 All. 231. He also cited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s filed prematurely. Not do they deny receipt of the notices issued. From the evidence adduced by the plaintiff it can be seen that letters were posted on the 14th and 15th May, 1967. The case of the plantiff is that in the normal course the letters must have reached the defendants by the 17th May, 1967. There is no evidence to the contrary. It is within the particular knowledge of the defendants as to when they received the notices but they chose not to give any evidence on the point. In the circumstances the case of the plaintiff must be accepted. The defendants have certainly withheld from the Court records to show when the notices were received and adverse inference should be drawn. 22. On the question of ownership of the seized articles adduced by the plaintiff against is uncontradicted and unchallenged. Such evidence consists of the oral evidence of Keshab Prasad Chamaria as also the statement made by the defendant No. 6 before the Customs authorities in May 1956 (Ext. 5) admitting the ownership of the plaintiff. The last is an admission against the interest of the defendant No. 6 deceased, and is admissible. The price tags and the cardboard boxes also support the ownership ..... X X X X Extracts X X X X X X X X Extracts X X X X
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