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Ambalal v. Union of India AIR 1961 SC 264 "A customs officer is not a judicial tribunal and a proceeding before him is not a prosecution. But the relevant provision of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witness, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned. To such a situation, though the provisions of the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence".......................

91. Shri Dada referred to Ambalal (AIR 1961 SCS 264) relied on by the Appellant and stated that the decision therein is in the context of confiscation of goods and the Court's observation therein was based on commission of an offence as could be seen from para 6 of the judgement:

"The Court has held that a custom officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that the relevant provisions of the Sea Custom Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an enquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on the person concerned, ......... . To such a situation, though the Code of Criminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply." In the said case the Honourable Court also had viewed that "we cannot also accept the contention that by reason of the provisions of section 106 of the Evidence Act the onus lies on the Appellant to prove that he brought the said items of goods into India in 1947".............. "If Section 106 of the Evidence Act is applied then, by analogy, the fundamental principles of criminal jurisprudence must equally be involved". Shri Dada submitted that in the instant case neither the Code of Criminal Procedure nor Evidence Act is attracted to warrant strict proof. Shri Dada referred to Mohan Singh (AIR 1964 SC 1366), Ch.Razik Ram (AIR 1975 SC 667), Ramanbhai NagjiBhai Patel (AIR 1978 SC 1162), Ramsingh (AIR 1986 SC 3) and stated that the main issue involved in those cases were charge of corrupt practices indulged in election, and the test of evidence laid down to establish charge of corrupt practices in election cases cannot be imported to a case of market manipulation, that corrupt practices in election matters are taken as a special case akin to criminal charge and hence the Court prescribed severe test. Svenska's case (1994 SC 626) relied on relates to indulgence of fraud in a matter involving bank guarantee which the Court considered out right as a criminal act and the strict proof test was applied, that it is not so in the present case. Chaturbhai case (AIR 1976 SC 712) relates to fraud by a consignor indulged in to cheat the Railways. Shri Dada submitted that the test of evidence laid down in Gulabchand's case (AIR 1966 SC 1734) laid down by the 5 judges Bench is the law in this regard, a position which the Bombay High Court has already highlighted in NHB/ANZ Grindlay (Supra). In NHB's case Hon'ble High Court had viewed that "In this case the law of the land happens to be as per the judgement of the constitutional Bench of the Supreme Court in Gulabchand's case, as against that, Chaturbhai's judgement is of a Bench of two judges. Gulabchand's case was not cited before the Bench hearing Chaturbhai's case." Shri Dada submitted that even if it is viewed that charge under regulation 4(a) is a criminal charge, still the test laid down in Gulabchand's case is the one applicable.