TMI Blog1984 (5) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... id Department raided the residential premises of accused Nos. 2 and 3 on 26-2-1976 and 27-2-1976 and seized synthetic fabrics of foreign origin, lighter, flints of foreign origin, etc., the total value of the said goods being Rs. 3,55,645.60 p. These goods were seized under a reasonable belief that the said goods were of foreign origin and as such smuggled goods liable to confiscation under the Customs Act, 1962 read with Import and Export Control Order, 1947. Accused Nos. 2 and 3 failed to produce any voucher, bill or evidence of licit import. On interrogating these two accused, it was disclosed that accused Abdulmohmed Bhara, Arvind Bhailal Mehta, Babu Babla and one Ibrahim had arranged to bring these goods in truck No. GTY 2806 from sea-coast of Bhuj, the truck being piloted by a jeep driven by one Jumma Valimohmed. The said goods were unloaded in the garden (Wadi) of Jumma Valimohmed at village Mokha in Kutch. The truck was owned by one Mohmed Ahmed Manjoti and Jumma Valimohmed hired the said truck from the said Mohmed Ahmed Manjoti for transporting the goods from Bhuj sea-coast side to Ahmedabad and accordingly the said goods were transported from Bhuj to Ahmedabad on or about ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of inquiry by the Customs Superintendent but the accused came out with a say that the statements were not voluntary and were taken under duress and they were simply made to sign the same. 3. The learned Chief Metropolitan Magistrate on appreciating the evidence recorded before him came to the conclusion that guilt of accused Nos. 2 and 3 was proved beyond reasonable doubt. He accordingly convicted accused No. 2 of the offence punishable under Section 135 of the Customs Act, 1962 and sentenced him to rigorous imprisonment for one year and to pay fine of Rs. 5000/- and in default, to rigorous imprisonment for nine months, while he convicted accused No. 3 of the offence punishable under Section 135 of the Customs Act, 1962 and sentenced him to rigorous imprisonment for five years and to pay a fine of Rs. 10.000/- and in default, to rigorous imprisonment for one year. The learned Chief Metropolitan Magistrate, however, acquitted the rest of the accused because in the opinion of the learned Chief Metropolitan Magistrate, there was no reliable evidence to connect them with these goods except their bare statements before the Customs Officers which were again retracted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llows : "105. (1) If the Assistant Collector of Customs, or in any area adjoining the land frontier or the coast of India an officer of customs specially empowered by name in this behalf by the Board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this Act, are secreted in any place, he may authorise any Officer of Customs to search or may himself search for such goods, documents or things. (2) The provisions of the Code of Criminal Procedure, 1898, relating to searches shall, so far as may be, apply to searches under this Section subject to the modification that sub-section (5) of Section 165 of the said Code shall have effect as if for the word "Magistrate", wherever it occurs, the words "Collector of Customs" were substituted." Section 107 of the Act reads as follows: " 107. Any Officer of Customs empowered in this behalf by general or special order of the Collector of Customs may, during the course of any enquiry in connection with the smuggling of any goods, - (a) requires any person to produce or deliver any document or thing relevant to the enquiry; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to confiscation does not exceed two thousand five hundred rupees, by a Gazetted Officer of Customs lower in rank than an Assistant Collector of Customs." Section 123(1) of the Act reads as follows : "123. (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 are not 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 are 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." Section 124 of the Act lays down that no order confiscating any goods or imposing any penalty on any person shall be made under Chapter XIV unless the owner of the goods or such person is given a notice in writing informing him of the grounds on which it is proposed to confiscate the goods or to impose a penalty; or is given an opportunity of making a representation in writing within such rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which the authority to seize is conferred by the Act and in the context it could be referred to as a seizure under Section 178 of the said Act. The Supreme Court held that where the seizure was not under the Act, the burden will not shift on the accused as no presumption could be raised. 8. In the case of Asst. Collector of Customs v. Mukbulhussein Ibrahim -10 GLR 662, this Court also held that in order to attract the presumption under Section 123 of the Customs Act, 1962, the goods must be shown to have been seized from the possession of the accused by the Customs authorities. The ratio of the decision is that in order to attract the presumption under Section 123 of the Customs Act, 1962, a seizure must be shown to be under the Act. The decision of the Supreme Court in Gian Chand v. State of Punjab (supra) has been referred to by this Court while rendering the above decision. This Court also held that mere markings could not be taken as proof of the fact of the foreign origin of the goods as such markings and labels would be hearsay evidence. 9. In the case of Asst. Collector of Customs v. Pratap Rao -1972 Criminal Law Journal 1135 it has been held that the burden to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.), while disposing of Criminal Appeal No. 770 of 1978 with Cri. Appeal No. 799 of 1978 decided on 30-7-1980 also took the same view after referring to the decisions, of this Court in Criminal Appeal No. 417 of 1975 and Criminal Appeals No. 450 of 1977 and 688 of 1977, which we have referred to above. 13. The Supreme Court in the case of Balkrishna Soni v. State of West Bengal -AIR 1974 SC 120 has explained the difference between Section 107 and Section 108 of the Customs Act, 1962 at para 15 of the judgment. The Supreme Court has observed in the said paragraph as follows : "Does Section 107 enable the interrogation of even the potential delinquent or must it be confined only to witnesses who throw light on the delinquent's contravention of the law? "Any person" in the Section certainly covers every person including a suspect and potential accused. These words of the statute have to be interpreted in the light of the policy and purpose of the law. The object of Section 107, located in the neighbourhood of Section 108, indicates that while the normal process of inquiry is facilitated by Section 108, investigatory emergencies are taken care of by Section 107. Maybe situations a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t attracted in the present case because it is not proved that the seizure was under the Act. 15. Now, let us examine the submissions made on behalf of the appellants by the learned Advocate Mr. J.G. Shah in light of the decisions and relevant provisions of the Act which have been reproduced earlier. 16. Vahidkhan Munavarkhan Pathan, P.W. 5, Exhibit 9 was serving as a Customs Inspector with Headquarters at Ahmedabad in February 1976. He has stated that he went to the premises of the accused with a search warrant and the search warrant was shown to the accused in presence of the panchas and then search was effected and certain cloth and lighter flints were attached. There were foreign markings on the cloth as per his evidence. 100% synthetic yarn was used in manufacturing the said cloth which was of Japan make according to him. In cross-examination he admitted that many mills in India manufacture cloth from synthetic fabrics. He pleaded ignorance when asked whether many mills in India manufacture synthetic yarn. He admitted that there was no complete ban on import of synthetic cloth. He admitted that synthetic yarn could be imported on the strength of a permit but he again pleade ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ued by a competent officer and whether by the said warrant this Vahidkhan was authorised to search or seize the goods. It appears from the evidence of this Vahidkhan that the Superintendent of Customs was present at the time of this search, but that will not make any difference because the Superintendent only assisted in the search and the search was, in fact, carried out by him. Even there is nothing on record to show that the Superintendent was authorised to search and seize the goods under the Act as required by the relevant provisions of the Act which have been quoted earlier. 17. Dhirajlal Muljibhai, P.W. 6, Exhibit 16 was serving as the Superintendent of Customs at the relevant time. Vahidkhan was serving under him. Dhirajlal is a Gazetted Officer as per his say, but there is nothing on record to show that Vahidkhan was a Gazetted Officer. A Gazetted Officer of the Customs has got powers under Section 108 of the Act to summon any person and make inquiry. But simply because he may be a Gazetted Officer, he is not authorised to search or seize the goods unless it is shown that he is specially empowered by name by the Board as required by Section 105 of the Act. Section 110 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n admitted that he cannot say by seeing and touching such cloth manufactured by Reliance Textiles and Ambica Mills the difference between the texture. He admitted that synthetic yarn is permitted to be imported on permit and cloth is prepared from the same. He admitted that if a piece of cloth manufactured in Japan and another piece manufactured in Formasa were shown to him without markings on the same, he will not be in a position to say which was of Japan make and which was of Formasa make. He admitted that one cannot say by having a touch as to whether a particular cloth was manufactured in England or China or Japan or in a particular country. He stated that the investigation was carried on as per the instructions of the Assistant Collector but also admitted that no written instructions were given to him by the Assistant Collector. He admitted that the case of the Customs Department was that the cloth was first imported in Bhuj and then it was brought to Ahmedabad. He admitted that it was not their case that accused Nos. 2, 3, 9 and 10 had imported the goods in Bhuj nor had they any such evidence. He also admitted that he had no evidence to show that accused Nos. 2,3,9 and 10 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and produced them before the learned Chief Metropolitan Magistrate and prayed for remand and opposed the bail application filed on behalf of the Customs Department. There is no material on record to show as to who instructed or directed the said Inspector Brahmabhatt to arrest the accused and pray for remand and oppose the bail application. The Inspector Brahmabhatt is not examined as a witness in this case. The Superintendent has stated that N.H. Brahmabhatt is an Inspector in his office but he had no idea whether he had directed hkn to assist him in this case. He also stated that he had no idea whether he had instructed the Inspector Brahmabhatt to request for remand before the Chief Metropolitan Magistrate. The Superintendent has stated that he came to know that these two accused i.e. accused Nos. 2 and 3 were arrested in connection with these offences but he did not come to know as to who had arrested them. He admits that the file in this case used to remain in his custody and any officer acting in connection with this case had to place the papers before him and submit his report about the action taken by him. In spite of this, the Superintendent wants the Court to believe tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 111 of the Act gives a list of goods which are liable to confiscation. Section 112 prescribes penalties for contravention of the provisions of the Act, while Section 113 also lays down as to which goods are liable to confiscation. Section 124 of the Act, which we have reproduced in the earlier part of this judgment, requires that before an order confiscating any goods or imposing any penalty is passed, a notice is required to be given in writing informing the person concerned of the grounds on which it is proposed to confiscate the goods or impose penalty and he is given an opportunity of making a representation in writing within such reasonable time as may be specified in the notice and is also given a reasonable opportunity of being heard in the matter. There is nothing on record to show that any such inquiry was started by giving a notice in writing either to accused No. 2 or accused No. 3. When such an inquiry was not started by giving such a notice as required by Section 124 of the Act, the Superintendent of Customs was not authorised to record statements of the accused under Section 108 of the Act. We can say that all that was done was under Section 107 of the Act. No ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eiterated these allegations in their evidence on oath. It is pertinent to note that even though these two accused were cross-examined at length by the learned Special Public Prosecutor on behalf of the Customs Department in the Trial Court, no suggestion was made to them that they were free from 26-2-1976 upto 1-3-1976 and that their allegations were false. They have specifically stated that they were given threats and were even beaten and their signatures were taken below typed papers. Abdullamiya specifically stated that even though it was stated in his statement that he was served with a summons, it was false. In spite of this, the prosecution did not produce the summons in question. These two accused have admitted that they received some notice from the Customs Department but the Department has not produced the copies of any such notices to show as to under what provisions the notices were issued. They have not shown that notices were issued under Section 108 of the Act. 22. Exhibit 17 is the statement dated 28-2-1976 of Liyakatali recorded by the Superintendent. Exhibit 18 is the statement of Liyakatali recorded by the Superintendent on 29-2-1976. Exhibit 21 is the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o re-joinder on behalf of the Customs Department that they were not in their custody till they were arrested on 1-3-1976, we are inclined to accept the say of the accused that they were in custody from 26-2-1976 and the late recording of the statements tempts us to draw an inference that the statements may not be voluntary. But even if we take these statements into consideration, they do not advance the case of the prosecution any further, as stated by us a little earlier, firstly because the prosecution has not led any reliable evidence to establish beyond reasonable doubt that the goods were of foreign origin and smuggled goods and secondly because they cannot avail of the provisions of Section 123 of the Act as the seizure is not proved to be a seizure under the Act. 23. It was also suggested that the statements were written out stereo-typed and signatures were made by the Superintendent later on at a time below all the statements. There appears to be some substance in this submission, but as we are inclined to take the above view as regards the statements of the accused recorded by the Superintendent, we do not propose to discuss this aspect any further. 24. It is also on r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Chief Metropolitan Magistrate committed an error in holding these two accused guilty of the offence punishable under Section 135 of the Customs Act. 28. So far as the remaining accused who are acquitted by the learned Chief Metropolitan Magistrate are concerned, the learned Chief Metropolitan Magistrate has given cogent and convincing reasons for coming to the conclusion that the guilt of those accused was not established. The learned Chief Metropolitan Magistrate has discussed the case with regard to the remaining accused at Paras 7,7A and 8 and has rightly reached the conclusion that there was no sufficient evidence to establish the guilt of these accused. 29. The result of the aforesaid discussion is that Criminal Appeal No. 1259 of 1979 filed by accused No. 2 Liayakatali and Criminal Appeal No. 1260 of 1979 filed by accused No. 3 Abdullamiya Usmanmiya Pathan are required to be allowed, their conviction set aside and the sentences imposed upon them also are required to be set aside. So far as Criminal Appeal No. 798 of 1979 filed by the Union of India against the accused who were acquitted as well as Criminal Appeal No. 889 of 1979 filed by the State of Gujarat against tho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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