9911796707
TMI Blog1963 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... s seized consisted of six blocks bearing marks "999", N.M. Rothschild & Sons, 22 bars bearing marks '999', 3 small pieces of gold and one pair of murkies. Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the Superintendent. Land Customs, Barmer. By an order of the Collector of Customs, New Delhi, dated July 19,1957, this gold was confiscated and a fine of Rs. 10,000 was imposed on the appellant. Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under s. 167(81) of the Sea Customs Act. The prosecution claimed that under s. 178-A of the Sea Customs Act, the burden of proving that gold was not smuggled lay on the accused. Even apart from that, the prosecution claimed, it was clear that the gold had been smuggled. It was alleged that the appellant had carried the gold knowingly with intent to evade the regulations prohibiting the import of gold into India. 2. The main defence of the accused, who pleaded not guilty, was that no gold was recovered from him. The trial court held that the prosecution had failed to establish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th his trousers the gold identified in court as Ex. P.M. 1-32. The seizure Memo, which he claimed to have prepared at the time of the seizure was marked Exh. P. 3. This document mentions the names of three persons as search witnesses. None of these was examined by the prosecution. The third name mentioned in Exh. P. 3 is Pukh Raj son of Awasthi Mal, aged about 22 years, resident of Ajit. The defence examined a Pukh Raj who gave his father's name as Basti Mal and who was resident of Ajit, and stated that he was the only Pukh Raj in that village. The High Court seems to have doubted the indentity of Pukh Raj examined as defence witness as the Pukh Raj mentioned in the seizure list. This finding has been attacked by Mr. Kapur as un-justified. Whether or not the Pukh Raj examined as defence witness is the same as the person whose name is mentioned in the seizure list, is not, however, of much consequence; for the fact remains that the prosecution has not got the evidence of any of the witnesses in whose presence the search and seizure are said to have been made, to support Lal Singh's evidence. The learned Magistrate gave this failure of the prosecution to examine the witnesses as the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is, in, our poinion, not that the story of search and seizure as given by Lal Singh is not true, but that these witnesses have been gained over. 5. This brings us to Mr. Kapur's main contention, namely, that Lal Singh was not a Customs Officer for the place where the seizure was made, and so the seizure was not under the Land Customs Act, taken with the provisions of the Sea Customs Act. The answer to this contention depends on the construction of the notification appointing Customs Officers for the areas adjoining the frontier between West Pakistan and India. The notification as it stands after an amendment in 1956, runs 46-2 S.C. India as follows :- "1. In exercise of the powers conferred by Sub-section (1) of section 3 of the Land Customs Act, 1924 (19 of 1924) read with the notification of the Government of India in the late Finance Deptt. (Central Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontiers separating West Pakistan from India, the officers of the Government of Rajasthan specified in the schedule hereto annexed, to be Land Customs Officers within the jurisdiction of the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted construction of the word "adjoining". It is true that the village next to the frontier adjoins the frontier. It is equally correct, however, to describe the entire District nearest the frontier as adjoining the frontier; and we can see nothing wrong in the entire State of Rajasthan adjoining the West Pakistan Frontier. It appears to us that the Central Government treated the whole compact block consisting of the State of Punjab, State of Jammu & Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area adjoining the West Pakistan frontier, and for this one area it appointed a Collector of Land Customs. This appears clear from the order appointing the Collector of Central Excise, Delhi, to be the Collector of Land Customs (Notification No. 2L Customs, dated 25th January, 1958), taken with Rule 2(ii) A (i) of the Central Excise Rules, according to which Collector means "in the State of Punjab, Jammu and Kashmir and Rajasthan and in the Union Territories of Himachal Pradesh and Delhi, the Collector of Central Excise, Delhi". In other words, the jurisdiction of the Collector of Central Excise, Delhi, is not only over Delhi, but also it extends to the States of Punj ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had the mens rea necessary to constitute the offence. Learned counsel rightly pointed that while s. 178-A has the result of placing the burden of proof that the gold was not smuggled on the accused, it is of no assistance to the prosecution to prove that the accused was carrying the gold knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India. Once, however, it is found, as it must be found in this case, in consequence of the provisions of s. 178-A (the accused has not tried to discharge the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country. Mr. Kapur tried to argue that when gold i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
