TMI Blog1991 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... . As P.S.I. Dada had received information that the petitioner was to bring gold, he waited at the railway station and after the petitioner alighted from the train, he got into the horse-carriage in which the petitioner sat along with his luggage. When they reached at the second octroi Naka, the P.S.I. searched the baggage of the petitioner in the presence of panchas. It is alleged that before the P.S.I. started search, the petitioner tried to escape leaving the luggage in the horse-carriage. However, he was stopped by the police officer and the search of his person as well as baggage was taken in presence of two panchas named as Nemantsing Ram sing Garasia and Haridas Somaji Lohana. 30 gold bars were found bearing the markings "N.M. ROTHSCHILD SONS (RMR) 10 tolas No. 999.0." It was valued at Rs. 28.000/-. Ultimately the police handed over the case-paper and muddamal gold bars to the Superintendent of Central Excise and Customs, Junagadh. The Superintendent of Central Excise Customs, Junagadh, recorded the petitioner's statement on 22nd February, 1956. In the said statement the petitioner admitted that he came from Bombay on 8th February, 1956 and got down at Navagadh Station an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Co. on 12th April, 1956 by stating that they had cheated him in passing off smuggled gold bars. After giving an opportunity of personal hearing to the petitioner, the Collector of Central Excise, Baroda, passed the adjudication order on 7-9-1956 confiscating 300 tolas of gold bars under Section 167(8) of the Sea Customs Act. However, no penalty was imposed on him under the said section. 4. Subsequently the petitioner filed Special Civil Suit No. 1/60 before the Civil Judge (S.D.) Gondal, District Rajkot, for a declaration that the order passed by the Collector, Customs, was illegal, null and void as it was based upon no evidence. 5. The trial court decreed the suit filed by the petitioner and directed the respondents to return 30 bars of gold or its price viz. 35,100/- with interest at 4% from the date of the suit till realisation. 6. That judgment and decree was challenged by the respondents by filing First Appeal No. 584/64. By the judgment and order dated 6/8th November, 1971 the Division Bench of this Court partly allowed the said appeal. The decree passed by the trial Court with regard to return of gold bars in question or in the alternative payment of amount of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... foreign markings "N.M/ ROTHSCHILD SONS (RMR) 10 tolas No. 999.0". For this he has placed reliance on the panchnama dated 8th February, 1956 and the evidence of panch Haridas Somaji Lohana who was cross-examined by the learned advocate of the petitioner. Even in 1980 i.e. after a lapse of 24 years the panch has stated that the panchnama was correctly recorded as per the events that took place in his presence. (3) It is not the case of the petitioner that he was having any permission from the Reserve Bank of India to import the said gold as per Foreign Exchange Regulation Act, 1947. (4) The petitioner has falsely stated that he has purchased the said gold from Vrajlal. Thereafter he stated that he purchased the said gold from Kantilal Nanchand of M/s. Kantilal Nanchand Co. of Bombay. (5) He was not having any bill, voucher or chit (Ankda) for the purchase of the said gold from Kantilal Nanchand. Kantilal Nanchand has denied that he has sold the said gold to the petitioner. (6) Kantilal Nanchand in his statement dated 25th October, 1956 had stated that he had not received Rs. 28,000/- from the petitioner for sale of the said gold and there is no entry in his rojmal with r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction under Article 226 is limited and unless the order passed by the authority below is illegal, perverse or devoid of commonsense or contrary to rules of natural justice, the Court would not interfere with the said order. Further, in our view, it is not necessary to discuss in detail the judgments relied upon by the learned counsel for the petitioner in this case because all those cases are considered by the Supreme Court in detail in the case of Collector of Customs v. D. Bhoormull - AIR 1974 Supreme Court 859 = 1983 (13) E.L.T. 1546 (SC). 14. In that case the Court has observed that smuggling is clandestine conveying of goods to avoid legal duties, secrecy and stealth being its covering guards, it is impossible for the Preventive Department to unravel every link of the process. Many facts relating to this illicit business remain in the special or peculiar knowledge of the person concerned in it. On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned : and if he fails to establish or explain those facts, an adverse inference of facts may arise against him. With regard to Section 167(8) of the Sea Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation is a penalty in rem which is enforced against the goods and the second kind of penalty is one in person which is enforced against the person concerned in the smuggling of the goods. In the case of the former, therefore, it is not necessary for the Customs authorities to prove that any particular person is concerned with their illicit importation or exportation. It is enough if the Department furnishes prima facie proof of the goods being smuggled stocks. In the case of the latter penalty, the Department has to prove further that the person proceeded against was concerned in the smuggling." 15. Before making the aforesaid observations even with regard to burden in criminal prosecution, the Court has observed that the Department is not required to prove its case with mathematical precision to a demonstrable degree; for, in all human affairs absolute certainty is a myth and all exactness is a fake. The law does not require the prosecution to prove the impossible. All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. 16. Keeping the aforesaid principles in view, in our vie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me Court to the effect "If Section 106 of the Evidence Act is applied, then, by analogy the fundamental principles of criminal jurisprudence must be invoked" more than what the context and the peculiar facts of that case demanded. The Court has further observed as under : "These fundamental principles, shorn of technicalities, as we have discussed earlier, apply only in a broad and pragmatic way to proceedings under Section 167(8) of the Act. The broad effect of the application of the basic principle underlying Section 106 Evidence Act to cases under Section 167(8) of the Act, is that the Department would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved. Amba Lal's case (1961) 1 SCR 933 = [AIR 1961 SC 264 = 1961 (1) Cri LJ 326] was a case of no evidence. The only circumstantial evidence viz. the conduct of Amba Lal in making conflicting statements, could not be taken into account because he was never given an opportunity to explain the alleged discrepancies. The status of Amba Lal viz. that he was an immigrant fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed before the expiry of six months. As stated above, as the notice was given on 24th April 1956 by the concerned authority, it can be said that this judgment would have no bearing in the present case. 19. Learned Counsel has also relied upon the decision of the Supreme Court in the case of State of Gujarat v. P. Raghav, AIR 1969 Supreme Court 1297. In that case the Supreme Court considered Section 211 of the Land Revenue Code along with Section 65 and arrived at the conclusion that the revisional authority should exercise its jurisdiction within a reasonable time after grant of permission for building purposes because after the grant of permission the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. The Court took into consideration the fact that within three months of the date of the application the Collector was required to decide whether permission to construct as applied for by the person should be granted or not and that if the Collector has not decided the said Application within three months, then permission shall be deemed to have been granted as per the provisions of Section 65 of the Bombay L ..... X X X X Extracts X X X X X X X X Extracts X X X X
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