TMI Blog1960 (2) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... es on the business of a goldsmith in partnership in the firm name and style of Messrs. Natwarlal Govindji Zaveri, in Bombay and has a jewellery shop at Matunga, Bombay. According to the petitioners, in December, 1957 the 1st petitioner gave to the second petitioner gold weighing approximately 520 tolas for being melted and converted into bars. The second petitioner then had the said ornaments melted in his shop and converted the gold into three bars. The second petitioner thereafter handed over the three bars to the 1st petitioner in whose possession the same remained. In April, 1958 the 1st petitioner wanted to advance a loan of Rs. 60,000 to one Shamji Vishram who is the uncle of the second petitioner. As the loan was to be advanced, the 1st petitioner on the 28th April, 1958 gave the said three bars of gold to the second petitioner for sale. The second petitioner in order to obtain better value for the said gold had the said three bars sent to the National Refinery at Zaveri Bazar, Bombay on 25th April, 1958 through his employee, one Chhotalal P. Bhimani. The said Chhotalal took the said three bars to the said National Refinery and there handed over the said bars to be melted do ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judgment of a Division Bench of this Court, the point was not even canvassed before me as, so far as I am concerned, I must hold that the said Section 178A is not invalid by reason of the provisions contained in Article 19(f) and (g) of the Constitution. 3.Mr. Sorabji, the learned Counsel for the petitioners, contended that the 1st respondent who conducted the inquiry in this case has not in fact invoked the provisions of the said Section 178A. He contended that, therefore, the burden of proof that the gold in question was not smuggled gold was not on the petitioners but was on the Customs Department. Now, it has been held in the said Pukhraj's case that what is enacted in Section 178A is a rule of evidence and whether it can or should be invoked or not is to be determined by the officers conducting the inquiry, whether the seized goods should be confiscated and whether any personal penalty should be levied under Section 167(8). It has also been held in Pukhraj's case that that inquiry begins with the show cause notice. Now, the show cause notice in this case gives no indication whatever that Section 178A was or was likely to be invoked. I should not be understood to hold that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pparent from the wording used in formulating some of the grounds of attack mentioned in Paragraph 11 of the petition against the said order. Ground (a) attacks the said order on the basis that there was no evidence at all in the possession of the 1st respondent to show that the petitioners either imported or brought or sent into India the gold seized. This indicates that the attack was levelled on the footing that Section 178A had not been invoked. Ground (b) also is based on a similar footing. In ground (c) the wording used is that "the 1st respondent possibly or presumably proceeded on the assumption that the onus was on the petitioners to show that the gold seized was not imported from outside India. The 1st respondent presumably also acted on the belief that the law allowed him to make such an assumption and to throw the onus of proof of their innocence on the petitioners". The words "possibly" and "presumably" clearly indicate that the petitioners wanted to attack the order on the basis of Section 178A having been invoked in case the Court came to such a conclusion on a construction of the said order, although, according to the petitioners, the order had not been made on the b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... As stated in Para 2 of his affidavit, he was making his affidavit partly on his own knowledge and partly on the knowledge derived by him from the file relating to the subject matter of the petition. Therefore, on a reading of the order even Mondkar came to the conclusion that no onus was thrown upon the petitioners. But that, of course, was his own conclusion that is why he used the word "submit". Again, in paragraph 21 of his said affidavit, Mondkar states :- "I deny that the 1st respondent drew any presumption under Section 178A of the Sea Customs Act, but even if he had done so, he was entitled to do so……… ." 8.This sentence contains a denial that the 1st respondent had drawn any presumption under the said Section 178A and the use of the words "but even if he had done so" indicates that on a reading of the order Mondkar concluded that the 1st respondent had not done so. 9.Paragraph 22 of his said affidavit contains statements to a similar effect. At one place it is stated "I submit that the goods were not seized under Section 178A of the Sea Customs Act". That, again, is of course only a submission. 10.Now, as contended by Mr. Sorabjee, the best material from which it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 78A cannot be invoked unless three conditions have been complied with by the seizing officer. He contended that if any one of the three conditions precedent were not complied with by the seizing officer, the burden of proof cannot be cast under Section 178A on the person from whose possession the goods were seized and that the fact that the said three conditions precedent may be scrutinised at a later stage by the inquiry officer does not dispense with their compliance by the seizing officer. In this connection it has again to be borne in mind that in Pukhraj's case it has been held that Section 178A comes into play only at the stage of inquiry and that that section contains merely a rule of evidence. Therefore the question whether that section can apply and should be invoked is a matter for determination by the officer conducting the inquiry. It is not a matter for the seizing officer. It is for the inquiry officer to determine whether the three conditions mentioned in Section 178A have been complied with or not in the case before him. The three conditions are whether the articles seized fall within sub-section (2) of that section, whether the seizure was effected under the Act an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rue construction of Section 178A the burden can be invoked only against a person from whose actual physical possession the goods have been seized irrespective of the fact that the person possesses the goods on his own account or on account of another person. He wanted to contend that the presumption under Section 178A could, therefore, be invoked only against Chhotalal from whose actual physical possession the goods were seized and not against either of the two petitioners. Now, Mr. Diwan objected to this contention being raised by Mr. Sorabjee on three grounds, viz., that the point has not been taken in the petition, that it is not a pure point of law but is a mixed question of law and fact and that the same had not been taken at any stage before the 1st respondent who was the fact finding authority. Mr. Sorabjee conceded that it was not taken before the 1st respondent and that it has not been taken in the petition. But he wanted to argue this point on the ground that it involved a pure question of law. Now there are various judgments of our court, in some of which even a pure point of law which is not contained in the petition has not been allowed to be raised at the stage of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petition. I, therefore, think that it is not at all useful or permissible to allow this contention in this restricted form to be raised. 16.As the provisions of Section 178A have not been invoked. I will next consider Mr. Sorabjee's contention that the order is liable to be set aside on the ground that there was no evidence whatever on which the 1st respondent could made this order. It is necessary to examine this evidence in connection with two points, viz., in connection with the order of confiscation with a view to find out whether there was evidence that the goods were smuggled goods and secondly in connection with the order imposing a personal penalty against the second petitioner with a view to ascertain whether the second petitioner was a person concerned in the importation of the seized gold. 17.In considering this evidence it is necessary to bear in mind the relevant statement of the law contained in the judgment of K.K. Desai, J., dated 14th November, 1958, in Misc. Petition No. 303 of 1958 (Assalchand Chimanjee Mehta v. M.G. Abrol and Another). After considering the provisions of Section 167(8) of the Sea Customs Act, the learned Judge has stated :- "The questi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ond petitioner asked him to write down the weights of the three gold bars which he wrote down on a piece of paper. That piece of paper, which is in the nature of a small chit, was produced in evidence. On that chit are mentioned certain figures which are as follows :- "180 180 180 1 ½ 7 ½ 180 180 1 ½ 7 ½ 160 160 1 ½ 520 524 ¾ 5" 20.These figures show, as interpreted in the order, that the said three bars had contained 180, 180 and 160 tolas of gold of 999 fineness but with an addition thereto of 1 ½ tolas and 7 ½ vals, 1 ½ tolas and 7 ½ vals and 1 ½ tolas prespectively of debasing metal, so that the aggregate weight of the three bars came to 524 tolas and 35 vals. Chhotalal in his statement stated that he had written down on this chit the weight of each bar and also the weight of the debasing metal according to what the second petitioner had told him. Chhotalal further stated that he took the gold to the Refinery and gave it for melting in the name of C.P. Mody and not in his real name which is C.P. Bhimani and that he obtained a Token ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ness of the gold practically tallied with the assay report. He, therefore, came to the conclusion that the chit did pertain to the seized gold and from that he inferred that the story given by the second petitioner was not correct. Since the ornaments were made out of pure gold without any solders or debasing metal the fineness would have been 999 or very near to the same and not 989.7 as found in the assay report and as could be calculated from the said chit. From the fact that the said three bars were of weights which were multiples of ten and from his general knowledge that gold bars imported into India are all of ten tolas or multiples of ten tolas and from the fact that the seized gold was of 999 fineness, the 1st respondent inferred that the seized gold was smuggled gold. Before arriving at the said conclusion, he had negatived the petitioners' case that the seized gold was the gold out of the 1st petitioner's ornaments because of the reasons aforestated. In arriving at that conclusion that 1st respondent also took certain other factors into consideration, the conduct of Chhotalal in relation to the token, the statements made by the second petitioner, the non-corroboration by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im that the seized gold had been imported into India at a time when there were a prohibition and restrictions on the import of gold is a mere surmise or a suspicion. Mr. Diwan relied upon judgment of the Supreme Court in Meenakshi Mills Madurai v. The Commissioner of Income-tax, Madras - 1956 SCR 691 in support of his contention that a finding of fact, even when it is an inference from other facts found on evidence, is not a question of law. Now, I am not concerned in this case whether the 1st respondent's finding that the gold was contraband is a finding of fact or of law. The question is whether there was any evidence to support that finding of fact. An inference of fact can be made from the evidence as to other facts. In an application for a writ of Certiorari what is relevant to be considered is whether there was any evidence at all to support the order which has been made and that the order should be quashed if it has been made without there having been any evidence at all and is based merely on surmises and suspicion. When a given set of facts is established and when from the same any other fact is inferred, whether that inference is an inference of fact or whether it amounts ..... X X X X Extracts X X X X X X X X Extracts X X X X
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