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Documents citing Gian Chand And Others vs The State Of Punjab on 13 November, 1961

Shri Bharat Kumar Jain Alias Shri Bharat ... vs Cc on 25 April, 2007

13.1 There is no dispute over the fact that silver was notified under Sub-section (2) of Section 123 of the Act. The burden of proof that the goods seized under Section 110(1) of the Act are not smuggled goods, where they were seized under a reasonable belief that they are smuggled goods, is on the person from whose possession the goods were seized, and if any other person claims to be the owner, also on such other person. In any other case i.e. where the seizure is not made from the premises of any person, the burden will be on whoever claims to be the owner of the goods, so seized. As noted above, reliance was placed on the ratio of the decision in Gian Chand and Ors. v. State of Punjab, (supra), in which it was held that, the delivery to the Customs Authority under Section 180 of the Sea Customs Act was not a seizure under Section 178A of the Sea Customs Act. The decision of the Hon'ble Supreme Court was rendered in the context of the specific provision of Section 180 which provided for the Police Officer seizing the things to convey to and deposit such things at the nearest Customs House. It was held that, the seizure from the owner of the property under Section 180 by the Police was not a seizure under the Act, as contemplated by Section 178-A. As discussed above, there is no provision corresponding to Section 180 of the Sea Customs Act in the Customs Act of 1962 and, therefore, the seizure made by the Customs Authorities under Section 110(1), after having reason to believe that the goods were liable to confiscation, occurred for the first time, when the seizure panchnama was drawn by the Customs Officers on 20.11.1996, which also records their "reason to believe" as contemplated by Section 110(1) when the goods were seized before independent panch witnesses under the said detailed panchnama, which is on record. Since the goods were seized under Section 110(1) by the Customs Officers, which power they could have exercised for seizing the goods from anywhere, the burden of proof that they are not smuggled goods would ordinarily be on the noticee under Section 123 of the said Act. When the goods were seized by the Police from the possession of the appellant, who had received Rs. 50,000/- for keeping them in his safe custody concealed in the premises of Gajraj Ginning and Oil Mills, Rani, in which, as per the material on record, he was assisting his elder brother. Since initially seizure was made by the Police, it is possible for the appellant to contend that the seizure by the Police was not a seizure under the Customs Act as contemplated by Section 123(1). The appellant, however, clearly attempted to get the goods released by claiming that they were taken from his possession by the Police and he would prove title, but later he abandoned that course before the Customs Authorities. It will be seen from the impugned order that, the Commissioner has not rested his decision merely on the burden of proof theory incorporated in Section 123, but has, by appreciating the relevant material on record, categorically found that the Department has, even apart from Section 123 of the Customs Act, discharged the burden of proof in many material particulars falsifying the story put-forth by the appellant towards his claim that the impugned silver slabs belonged to one Shri Sagarmal (his brother's father-in-law), who kept the silver in a godown rented for Rs. 4,000/- per month, in the appellant's custody on the terms and conditions that he will sell them and charge commission at the rate of 2.5% of the sale proceeds.
Customs, Excise and Gold Tribunal - Delhi Cites 61 - Cited by 1 - Full Document

Ishwarlal vs Commissioner on 1 July, 2011

The Court has also noted from its earlier decision of Gian Chand and others vs. State of Punjab (supra) saying that by no stretch of imagination a Customs Officer is a police officer and he does not become one merely because his powers are similar to that of police officer. This Court is also not required to further delve into that aspect, at this stage, as the statements recorded of the present appellant and those of others even when retracted later on by filing the affidavit, would not take away the very edifice of the case of the department as discussed elaborately and extensively in the orders of the Commissioner and the Tribunal where facts get established on the basis of the documentary evidence made available to the adjudicating authorities. Thus, both the authorities below have based their opinions and findings on all these facts cumulatively to arrive at a conclusion that the gold seized was the smuggled goods liable to be confiscated for having been smuggled in contravention of the provisions of the Customs Act and those who purchased the gold, including the present appellant, did so with an intention to make profit knowing fully well that the same were smuggled. Difference in the purity of gold, anomaly found in the bills produced by all those persons at the time of retracting the statements made in their affidavits and positive evidence presented before the department in the form of total matching quality of the goods seized, cumulatively led these authorities and particularly the Tribunal to arrive at such a conclusion. This Court sees no reason to interfere with the said order which is well reasoned and appeases the logic.
Gujarat High Court Cites 17 - Cited by 0 - A Kureshi - Full Document

Union Of India vs Abdulkadar Abdulgani Hasmani on 2 May, 1984

26. It is true that in the case of Gian Chand v. State of Punjab (supra), the premises were first searched by a Police Officer and the goods seized under the provisions of the Code of Criminal Procedure, while in the present case the premises were searched by a Customs Officer and the goods also seized by a Customs Officer purporting to act under the provisions of the Customs Act. But even then the fact remains that the said officer was not either authorised to search or authorised to seize the goods and hence it follows that the seizure cannot be said to be under the Act. In our opinion, it will not make any difference whether the goods are seized by a Police Officer or by an Officer of Customs not authorised to do so under the Act. In our opinion, the result would be that such seizure cannot be said to be a seizure under the Act as required by Section 123 of the Act.
Gujarat High Court Cites 29 - Cited by 13 - Full Document

Shri Dev Shankar Sharma & Others vs Cce, Kanpur on 16 May, 2014

13. Customs authority seized the gold from Shri Dev Shankar Sharma only for the first time on 22.04.2001 under Customs Act 1961 without being a second seizure from the custody of police. There was no free import of gold allowed at the material time. Appellants fail on all courts. Facts on record prove that Police had never seized the gold under CRPC. Therefore, it is not possible to entertain any of the appeals without any merit therein. Appellants also fails to gain benefit of the ratio laid down in the case of Gian Chand and others V. State of Punjab  1983 (13) ELT 1365 (S.C.). In that case the gold was seized by police under CRPC and when no case could be made by police against 3 accused in that case the seized gold was given by police to Customs. But present case is altogether different not being a seizure by police at all. When Shri Dilip Ludwani and Shri Nachani failed to be owner of the seized gold there is no necessity to deal with other citations made by the appellants added to this foreign origin of the gold was established from the face thereof. Consequently, all the three appeals are dismissed.
Custom, Excise & Service Tax Tribunal Cites 10 - Cited by 2 - Full Document

Sri Harish Chandra Prasad vs Kolkata(Prev) on 27 June, 2024

"7.1 ............................. The next issue for consideration is inasmuch as the gold has not been seized from the possession of the appellant but was handed over by the Police to the Customs authorities, whether onus to prove that the gold in question is not smuggled is on the appellant or not. The Constitution Bench of the Hon'ble Apex Court in the case of Gian Chand & Others v. State of Punjab, reported in 1983 (13) E.L.T. 1365 (S.C.) held that "if the goods are seized by the police and delivered to the Customs authorities under Section 180 of the Sea Customs Act, 1878, It is not seizure by the Customs within the meaning of Section 178A of the Sea Customs Act, 1878. This is because when the police officer seized the goods under some other law, such as. Code of Criminal Procedure, the accused lost possession of the goods which then vested in the police and when that possession was transferred to Customs authorities under Section 180 ibid, there was no fresh seizure under the Sea Customs Act, 1878. The provisions of Sea Customs Act and the Customs Act, 1962 are identical with respect to the seizure and the onus of proof in the instant case. From the records it is evident that it is the police who seized the goods on 6-11-2009 and thereafter they were 8 Customs Appeal No.75175,75176,75177 of 2017 handed over to the Customs authorities by the police on the request of the Customs authorities. In other words, the Customs authorities did not seize the goods from the appellants; therefore, the provisions of Section 123 which casts the onus on the appellants to prove that the goods are not smuggled is not applicable, inasmuch as no seizure has been made from the appellant by the Customs. The same view has held by the Hon'ble High Court of Bombay in the case of Prithviraj Pokhraj Jain (cited supra) and by this Tribunal in a number of cases such as Nirmala Mitra [2001 (138) E.L.T. 1037 (Tri.-Kol.)], E. Eshwara Reddy, Naveed Ahmed Khan, etc. Therefore, the burden and onus of proof to establish the fact that the goods are smuggled lies on the Revenue and not on the appellants, in terms of the judgment cited above and we hold accordingly."
Custom, Excise & Service Tax Tribunal Cites 20 - Cited by 0 - Full Document

Mahesh B Mali vs Commissioner Of Central Excise on 9 July, 2012

7.1 The first issue for consideration is whether Section 123 of the Customs Act, 1962 is applicable to gold or not. The Ld. Counsel for the appellant has argued, the gold is not included under Section 123. This argument is wrong for the reason that subsequent to sub-section (2) of Section 123 clearly provides that the section applies to gold and the manufacturer thereof. The next issue for consideration is inasmuch as the gold has not been seized from the possession of the appellant but was handed over by the Police to the Customs authorities, whether onus to prove that the gold in question is not smuggled is on the appellant or not. The Constitution Bench of the Hoble Apex Court in the case of Gian Chand & Others Vs. State of Punjab, reported in 1983 (13) ELT 1365 (SC) held that if the goods are seized by the police and delivered to the Customs authorities under Section 180 of the Sea Customs Act, 1878, it is not seizure by the Customs within the meaning of Section 178A of the Sea Customs Act, 1878. This is because when the police officer seized the goods under some other law, such as, Code of Criminal Procedure, the accused lost possession of the goods which then vested in the police and when that possession was transferred to Customs authorities under Section 180 ibid, there was no fresh seizure under the Sea Customs Act, 1878. The provisions of Sea Customs Act and the Customs Act, 1962 are identical with respect to the seizure and the onus of proof in the instant case. From the records it is evident that it is the police who seized the goods on 06/11/2009 and thereafter they were handed over to the Customs authorities by the police on the request of the Customs authorities. In other words, the Customs authorities did not seize the goods from the appellants; therefore, the provisions of Section 123 which casts the onus on the appellants to prove that the goods are not smuggled is not applicable, inasmuch as no seizure has been made from the appellant by the Customs. The same view has held by the Honble High Court of Bombay in the case of Prithviraj Pokhraj Jain (cited supra) and by this Tribunal in a number of cases such as Nirmala Mitra, E. Eshwara Reddy, Naveed Ahmed Khan, etc. Therefore, the burden and onus of proof to establish the fact that the goods are smuggled lies on the Revenue and not on the appellants, in terms of the judgement cited above and we hold accordingly.
Custom, Excise & Service Tax Tribunal Cites 25 - Cited by 1 - Full Document

Devkumar G. Aggarwal vs Collector Of Customs (Prev.) on 10 January, 1994

5.1. Mr. Jagatiani, the Ld. Advocate for the Appellant, while advancing his arguments on the merits of the Appeal preferred by the Appellant, has submitted that the Appellant is not challenging finding of the subject gold bars from the Lonawala Bungalow of the Appellant, nor is he challenging the seizure thereof by the Income Tax Deptt. where the Appellant has already filed application vide Section 245C(1) of the Income-tax Act, 1961 for settlement, and even here he is claiming the possession and ownership in the seized gold. He has however pleaded that the seizure of the gold bars from the Appellant's possession was only by the Income-tax Authorities and not by the DRI and the custody of the said gold bars is acquired by them only by virtue of handing over to them, by the Income-tax authorities. The Ld. Advocate has referred to the Panchnama dt. 28.6.1991 drawn by the DRI officials at the Income-tax office, and has pleaded that thus, there being no seizure under the provisions of the Customs Act, provisions of Sections 110 and 123 of that Act could not be applied. The Ld. Advocate, elaborating his submissions, has pleaded that seizure always means forcible taking over from physical possession of someone and handing and taking over of an item by one Govt. Deptt. from another Deptt., could not tantamount to seizure and has referred to the decision of the Supreme Court in Gian Chand and Ors. v. State of Punjab , and has pleaded that act of alleged seizure is an unilateral act of the seizing authority.
Customs, Excise and Gold Tribunal - Mumbai Cites 43 - Cited by 0 - Full Document

Smt. R.K. (O) Sonia Devi vs The Commissioner Of Customs ... on 7 February, 2020

[22] In the present case, a power is granted to the Customs Officer under Section 110 of the Customs Act, 1962. He exercised that power on the reasonable belief that the goods are liable for confiscation and the Page 22 goods were seized two days after certain procedural formalities. The officers did not act in haste but has taken the decision to seize the goods after following certain formalities as enumerated above. Therefore, decision of the Supreme Court in Gian Chand and others v. State of Punjab: AIR 1962 SC 496 does not apply to the facts of the present case. The argument of the learned counsel is that it is only in the case where there is a doubt on the licit ownership of gold and in contravention of the Customs Act, Section 110 can be made applicable. This contention has been addressed in para 20 above.
Manipur High Court Cites 31 - Cited by 0 - R Sudhakar - Full Document

Joginder Singh vs Delhi Admn. (Pfa Deptt on 2 June, 2010

Ld defence counsel argued another point that there was a gap of 8 months till when appellant accused exercised his right U/s 13 (2) PFA Act and the sample milk would not have preserved its constituents even if preservative was added beyond a certain period and on that point ld counsel had relied on judgment by Delhi High Court in a case Gian Chand Vs State wherein reliance was placed on another Supreme Court judgment in MCD Vs Ghisa Ram. It was found that the sample curd in the reported judgment even if preservative had been added could not have remained fit for analysis after more than six months even if it was kept in refrigerator. There being no evidence to that effect, it was to be presumed that it was not kept in refrigerator and therefore decomposition should have taken place earlier. Accordingly it was held that the court was inclined to agree with the submissions of ld counsel that genuineness of the sample which had been produced before trial court as the counter sample was not beyond doubt.
Delhi District Court Cites 8 - Cited by 0 - Full Document
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