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TMI Blog1987 (11) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... pedient in the public interest to take special measures for the purpose of checking the illegal import circulation or disposal of such goods, or facilitating the detection of such goods, -it may, by notification in the official gazette, specify goods of such class or description." Section 123 of the Act reads as follows : 123. Burden of proof in certain cases. (1) where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they act no smuggled goods shall be - a) in a case where such seizure is made from the possession of any person - i) on the person from whose possession the goods were seized; and ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person : b) in any other case, on the person, if any, who claims to 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," 2. The notifications issued by the Central Go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Act, 1962 and a complaint was filed by the appellant herein before the lower court. 5. On the respondents pleading not guilty to the charge, P.Ws 1 to 6 were examined and Exts. PI to P5 and M.Os 1 to 36 were marked. The respondents denied the incriminating circumstances appearing against them. According to them the goods seized were not stored for sale in the shop. The 1st respondent stated that all the articles were brought by him, from Mali Island after payment of Customs duty for his domestic use. The 2nd respondent also gave a similar version. On behalf of the defence D.W.I, the officer in charge of the State Bank of Travancore, Air Port Exchange, Trivandrum, was examined and Exts. Dl and D2 were marked. 6. P.W.I, the Assistant Collector of Central Excise is the complainant. P.W.2 is the Superintendent who alongwith his party seized the goods. P.W.3 is the Inspector under P.W.2 and he was also with P.W.2 at the time of search and seizure. P.W.4 is the father of the second accused who attested Ext. P2 mahazar prepared at time of seizure from the shop. Ext. P5 is the statement of P.W.4 before the Customs Authorities. P.Ws 5 and 6 were called as witnesses to the search and att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aws in force in India can be taken judicial notice of. We will not examine whether the notifications issued under Sections 11B and 123(2) of the Act are Laws within the meaning of Section 57(1) of the Evidence Act. Large number of decisions have been cited before us by counsel on both sides. 10A. In Chacko Pyli v. State of Kerala (1966 K.L.T. 102) the question whether a notification issued under Section 19 of the Kerala Forests Act 1962 could be taken judicial notice of under Section 57 of the Evidence Act came up for consideration of a Division Bench of this Court. Section 19 of the Act contemplates publication of a notification in the gazette specifying the limits of the forests which are intended to be reserved and declaring the same to be reserved from the date to be fixed by such a notification. Section 27 of the Forests Act provides for penalties for trespass or damage in reserve forests. The Division Bench held that the Court cannot take judicial notice of the notification issued ..under Section 19 of the Forests Act by virtue of the proviso contained in Section 57 of the Evidence Act. But such a notification is a public document within the meaning of Section 78 of the Evi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of the Act. An order made by the. Provincial Government in exercise of the power conferred by this section owes its legal efficacy to this section and therefore in the eye of law the notification has the force of law as if made by the legislature itself." This position has been reiterated by the Supreme Court in Kailash Nath and Another v. State of U.P. & Other (A.I.R. 1957 S.C. 790). The notifications which arose for consideration in this case was one issued under Section 4 of the Uttar Pradesh Sales Tax Act which empowered the State Government either to exempt certain kinds of transaction from the purview of Sales Tax completely or to allow a rebate of a portion of the tax payable. With regard to the nature of this notification, the Supreme Court observed thus. "This notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption under the notification is as if it is contained in the parent Act itself." 14. Again in Saraswati Industrial Syndicate Ltd. etc. v. Union of India (A.I.R. 1975 S.C. 460) the Supreme Court held that price fixation by the Government in exercise of powers conferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive act but the notification of the price so fixed as the maximum price for which the goods can be sold is not an executive order; it is a legislative provision' made in the exercise of delegated legislative power. This view is fortified by the decision of the Supreme Court in 'State of Bombay v. F.N. Balsara' A.I.R. 1951 S.C. 318 where a notification issued by the Government under the Bombay Excise Act was held to be one having the force of law and as if made by the legislature itself. Section 139, Bombay Prohibition Act, 1949, authorises the State Government by general or special order to exempt any intoxicants or class of intoxicants from all or any of the provisions of the Act. The Supreme Court observed at page 329 that an order made b) the Provincial- Government in the exercise of the power conferred by this section owes its legal efficacy to this section and, therefore, in the eye of law the notification has the force of law as if made by the legislature itself." After this authoritative pronouncement of the Supreme Court the question whether a notification issued by the Government or any competent authority in the exercise of delegated power of legislation can be judicial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions, regulations or orders issued in exercise of the powers delegated are law. As indicated above a modern State undertakes enormous activities including social welfare measures in the interest of general public. This gives rise to ever increasing need for delegation of functions of legislature to the Executive. As compared to statutes, the volume of delegated legislation both in England and India, has immensely increased and it has been well said that "in mere bulk, the child now dwarfs the parent." The exercise of these delegated powers appears under different names such as rules, regulations, orders, notifications, directions, schemes, circulars, bye-laws etc. Since these subordinate legislation's supplement a statute or exempt certain matters from its operations, though they are made by the executive they qualify to the termed as law". The long line of decisions of the Supreme Court referred to above would lead to the conclusion that power exercised by the executive by virtue of the conferment of the delegated authority by the Statute is a legislative act and hence law within the meaning of Section 57 of the Evidence Act. 18. In the light of the principle enunciated in the ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake judicial notice. Therefore, if that were necessary. The Court should have looked into the gazette or other book or document of reference for the purpose of ascertaining whether or not the law here in question had been brought into force. It is only where a document of reference for the purpose of deciding such a question is not readily available that the question of the Court calling upon the party concerned to produce it would arise." 19. As pointed out by the Full Bench in the above decision the Court should have looked into the gazette or other book or document for the purpose of ascertaining whether or not the alleged notifications has been issued. Of course if the Court is not able to trace the notification, it is open to the Court to .call upon the person who requires the court to take judicial notice unless and until such person produces any such book or document which contained the notification. This is provided for in Section 57 of the Evidence Act itself. In the instant case, Shri K. Prabhakaran, counsel for the appellant submitted that the book containing the notification was placed before the lower court. The records do not disclose that the book contained the rele ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ised P.W. 2 to make the search. It has not been explained why an order in writing authorising an Officer to search could not be issued in this case. Having regard to the purpose for which the provision requiring authorisation is enacted and in order to prevent the abuse of power conferred by the Section empowering search and to protect the interest of persons who are likely to be affected by the action, it has to be held that a written authorisation is necessary. It may also be noticed, that sub-section (2) of the Section 105 provides that the provisions of the Cr. P.C. relating to searches shall, so far as may be, apply to searches under Section 105 subject to the modification that sub-section (5) of Section 165 of the Code shall have effect as if for the word "Magistrate" wherever occurs the word "Collector" of Customs were substituted. Section 165(3) of Cr. P.C. contemplates an order in writing specifying the place to be searched and so far as possible the thing for which search has to be searched. In these circumstances, we conclude that there was no authorisation empowering either P.W. 2 of P.W. 3 to make a search in this case. 21. The learned Counsel for the appellant ventur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise v. Wilfred Sebastian & Others (1982 K.L.J. 670), Kader J, after noticing the decisions of Supreme Court on the point made the following observations : "It is therefore now fairly settled that illegality of a search will not affect the validity of the seizure of the articles, or any way vitiate the recovery of the articles and subsequent trial. If the search was illegal it gives a good defence to the person whose house or premises was searched to resist the same and the Court will have to examine carefully the evidence regarding seizure. If after such an examination the evidence regarding the seizure of the articles is found to be satisfactory and acceptable, it will not be in the interests of justice to ignore altogether that evidence, particularly in economic and anti-social crimes. Smuggling of foreign articles to India will no doubt affect the public primarily and the financial stability of the country. The expression acquired possession used in Section 135 of the Act is of very wide amplitude and will include the acquisition of the possession by a person in a capacity other than as owner or purchaser. As regards the application of Section 123, no doubt, the initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contemplated under Section 106A but was a search. But in the view we have taken that illegality committed in the matter of search will not vitiate the subsequent actions taken by the Officers, and the trial the prosecution cannot fail for the reason of the illegality in the search. 27. The next question that has to be considered is whether the goods were goods notified under Section 11B and 123(2) of the Customs Act. On a perusal of the mahazars Exts. P2 and P4 and the articles seized thereunder we find that most of the articles are goods notified under Section 11B and 123(2) of the Act. 28. Learned counsel for the respondent however raised two contentions on this aspect. The first contention is that there is no evidence to show that these goods were imported goods. The second contention is that marking on the goods cannot be relied as proof of goods being imported goods. The respondents themselves did not dispute that the articles were imported goods but they only raised the contention that they were brought into India after payment of duty and that some of the goods were for their household use. There were altogether 36 items. A perusal of the mahazars under which those article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be in a case where such seizure is made from the possession of any person, on the person from whose possession the goods were seized claims to be the owner thereof, also on such other person and in any other case, on the person, if any, who claims to be owner of the goods so seized. In the circumstances the burden is on respondents 1 and 2 to show that they are not smuggled goods. They have not discharged the burden cast upon them under Section 125 of the Act. 30. There are markings on several items seized indicating that they were of foreign origin. The learned counsel for the respondents however argued that markings cannot be considered sufficient proof of foreign origin. In support of his contention that the markings are not sufficient proof of the fact that the goods are of foreign origin the counsel strongly relied on the decisions of the Gujarat High Court in Assistant Collector of Customs, Baroda v. M. Ibrahim Pirjada (1970 Crl. L.J. 1305), Union of India v. Abdulkader Abdulgani and Others (1985 Crl. L.J. 324) as well as the decision of the Privy Council in Comptroller of Customs v. E. Western Court in Balumal Jamnadas v. State of Maharashtra (A.I.R. 1975 S.C. 2083) and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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