Punjab-Haryana High Court
Assistant Collector vs Daljit Singh And Ors. on 3 April, 1991
Equivalent citations: 1995ECR43(P&H), 1992(58)ELT54(P&H)
JUDGMENT S.D. Bajaj, J.
1. Prosecution case set up against the three accused in the complaint filed by the Assistant Collector of Customs, Amritsar, against them under Sections 135 and 135A of the Customs Act, 1962, is:-
"On 26-10-1979, a police party of P.S. Bhikhiwind while on routine patrolling in a Government Jeep, reached near road bridge near village Sur Singh which is situated near the Border. There are certain residential premises and Sovinder Singh alias Chhinder is also residing in that village. On seeing the police party, one person ran from the house recklessly which created suspicion in the mind of the police party, who after parking the Jeep outside the house, tried to enter the house to know the facts. Sovinder Singh, Joginder Singh and Daljit Singh accused opened fire on the police party whereupon the police party saved their lives after taking shelter behind the wall. During the course of firing, all the three accused managed to escape from the back-door of the house. Thereafter, the police party recovered contraband goods of the value of Rs. 2,40,000/- consisting of silver weighing 114.688 kgs., Terry cloth 10 meters, Lohis 4 pieces, Umra of Razai 5 pieces packed in a Rexin bag from the house of Sovinder Singh in a room under the heap of straw. These goods were taken into possession by the police party and thereafter the same were handed over to the Customs Inspector at Bhikhiwind on 29-10-1979 for taking necessary action under the Customs Act. The goods were accordingly seized by the Customs Officers under Section 110 of the Act having reason to believe that the same were liable to confiscation under the Act as these were under process of being smuggled to Pakistan without any legal permit. Later on the statements of the accused were recorded and they admitted that the goods were to be carried to Pakistan. Show cause notices were issued to the accused and the seized goods were ordered to be confiscated to the Government of India. After adjudication proceedings, the necessary sanction from the Collector of Customs, Chandigarh, for the prosecution of the accused was obtained and thereafter, the present complaint was filed in this Court."
2. On being charged with the commission of offences under Sections 135 and 135A of the Customs Act, all the three accused pleaded 'not guilty' thereto and claimed to be tried. Vide its impugned judgment dated March 3,1982, learned Trial Court gave to all the three accused benefit of doubt and acquitted them. Feeling aggrieved from the judgment of acquittal aforesaid, Union of India in the Ministry of Finance (Department of Revenue) has filed Criminal Appeal No. 686-DBA of 1982 through its Assistant Collector of Customs at Amritsar. Hence the appeal.
3. We have heard Shri Ashutosh Mohunta, Advocate, for the Union of India, Mrs. Vanita Sapra, Advocate, for the respondent and have carefully perused the record.
4. In the course of their statements under Section 313 Criminal Procedure Code, all the three accused vehemently denied the allegations made against them by the prosecution and asserted that while they were still in custody in the course of trial under Section 307/353 of the Indian Penal Code in the Court of Sessions, the police obtained their signatures on certain blank papers and that after acquittal therein vide judgment Ex. DA, they are peacefully living with their family members in their ancestral houses. Sarpanch Kundan Singh DW-1 has also stood by their assertions in this regard.
5. It is really interesting to note that the recovery of contraband goods was effected from the baithak of Chhinda on 26th October, 1979, on Shrimati Piaro pointing out the place of concealment to the police and that Shrimati Piaro who made the disclosure statement to the police and pointed out the place of concealment of the contraband goods to the police, has not been arrayed as accused. It surpasses our comprehension as to how could the three accused be made liable for the allegedly recovered contraband articles.
6. Section 123 of the Customs Act (No. 52 of 1962) reads:-
"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 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 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. [See Customs Act, 1987, Section 178A; Cf. U.K. Customs and Excise Act, 1952 (C. 44)].
(a) Substituted by Act 36 of 1973, Section 4 (3-9-1973),
(b) Following other classes of goods are specified for the purpose of this section : (i) Cosmetics; (ii) Mechanical lighters and flints therefor; (iii) Playing cards and (iv) Safety Razor blades - See Gaz. Ind., 26-81987, Pt. II, Section 3(i), p. 1388 (i) Cigarettes, transistors and diodes; synthetic yarn and metallic yarn, and fabrics made wholly or mainly of synthetic yarn - See Gaz. Ind., 27-3-1968, Pt. II, Section 3(i), Ext., p. 141."
In Union of India v.Kasambhai Umerbhai Kureshi, 1979 Criminal Law Journal 1173, this provision was interpreted as follows:-
"The goods were seized from the petitioner by the Police. The accused and the goods seized were taken to the Police Station and a panchnama was prepared. Thereafter the goods were handed over by the Police to the Custom Authority. It is evident that the seizure of the goods was not made by the Customs Authority. The expression "seize" was defined by the Supreme Court in 'Gian Chand v. State of Punjab', AIR 1962 SC 496, in the context in which it is used in the Act. That word was stated to mean the taking of possession, contrary to the wishes of the owner of the property. It cannot be denied that in the instant case, as far as the Police was concerned, there was a seizure of the goods from the accused/respondent, but as far as the Customs Authorities were concerned, the goods were received and not seized by them, because they were willingly parted with by the Police, who by that time had the custody of the goods, to the Customs Authorities. There was therefore no seizure of goods within the meaning of Section 123 in the present case. Besides, the seizure must be with the reasonable belief that they are smuggled goods. There is nothing on record to show that the goods were seized by the Police in the reasonable belief that they were smuggled goods. For all we know the police might have seized the goods under the bonafide belief that goods were smuggled goods. For these two reasons it is not possible to apply the provisions of Section 123(1) of the Act to the present case and shift the burden of proof to the respondent to prove his innocence."
It was also observed in the authority aforesaid:-
"This is an appeal from an order of acquittal. There is no doubt that my powers to re-assess the evidence and reach my own conclusions are as extensive as those which this Court would have in an appeal against conviction. As a rule of prudence, however, I have to give weightage to the views of the Trial Judge as to the credibility of the witnesses; to the presumption of innocence in favour of the accused, which was strengthened by the fact that he has been acquitted at the trial. The right of the accused to the benefit of any doubt should be given to him and the general slowness on the part of the appellate courts in disturbing finding of facts arrived at by a Judge, who had the advantage of watching the demeanour of witnesses, must also be borne in mind."
In this view of the matter, learned Trial Court rightly gave the benefit of doubt to the three accused. Its finding in this behalf is affirmed.
7. In Vasantlal Ranchhoddas Patel and Ors. v. Union of India and Ors., AIR 1967 Bombay 138 adverted to at the time of admission of the appeal "Officers of the Enforcement Directorate had no powers to seize 'articles' from persons. They could only assist the officers of the Customs Department in execution of the act". It was in these peculiar circumstances that the seizure was held to be valid. In the present case the discovery of contraband goods was made by the police in pursuance of disclosure statement made to them by Shrimati Piaro on 26-10-1979. Contraband goods remained in Police Malkhana from 26-10-1979 to 29-10-1979. The police entrusted these contraband goods to officers of the Customs Department on 29-10-1979. Statement of the three accused Ex. PD, Ex. PE and Ex. PF were also recorded by the police and not by the Customs Authorities. These admissions render the defence version plausible to the extent that signatures of the three accused were obtained by the Police on blank papers while the three accused were in custody in the course of Sessions trial culminating in their acquittal vide judgment Ex. DA and that the same papers were converted into statements Ex. PD to Ex. PF; otherwise the statements made to the police are not required to be signed by the maker.
8. For the reasons given above, Criminal Appeal No. 686-DBA of 1982 wholly gets bereft of any merit therein and is consequently dismissed.