Conviction for possessing smuggled cigarette lighters and lighter flints under Section 135(b)(ii) of the Customs Act was upheld; the retrospective procedural presumption of Section 123(1) could apply at trial, and inscriptions on goods and the appellant's conduct proved knowledge of smuggled character.
None granted; conviction, sentence and confiscation upheld.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
539
BALUMALJ~MNADASBATRA
v.
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STAIB OF MAHARASHTRA
August 29, 1975
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[M. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
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Custo1ns Act, 1962, Section 123, sub-sections (l) and (2)-Seizure of smuggled goods prior to rtotification under sub-section (2)-Presurnption under subsectj_on ( 1 ), if could be applied subsequent td; notification to ihe goods seized.
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Section 123(1) of the Customs Act, 1962, provided that, 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 sn1uggled goods shall be on the person from whos-e possession the goods were seized.
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On 21-4-1967, Police Officers oftheAnti-CorruptionandProhibition Bureau, Greater Bombay, acting on information received, had searched room no. 10 at 56, Sheriff Devji Street, Bombay. This room was divided by partitions into threeparts.. In the ·central portion, the police found the appellant and three other persons. This portion-wasagain sub...divided with a locked connecting doorfixedin the passage to the sub-divided part. Thiswasopened by oneof thetwo Godrej lockkey~_produce4 by the appellant from a side pocketofhis trousers. Eleven wooden boxes covered with jute cloth and secured by iron strips were found there. On opening them, six of them were foundtocontain .::igarettelighters of "Imco Triplex Junior" brand "Made in Austria''. Each Jfthesixboxes were tightly packed with 1200 lighters.Therernainingfive boxescontained fifty sealed tins of flints for cigarettelihterswhich bore the following writing : ''Tego Lighter Flints of Superior Quality1'1adein Germany" inscribed on them. A panchnama was prepared before Panchas. A ·rent receipt in the nameoftheapJlantinrespect of room No.10,in this house,of which a portion was occupied by the appellant, and a bill for the cOnsumption of electricity were also seized from the custodyofthe appellant together with the Godrej lock and the keys produced by the appelJant.On30th October, 1968, the Assistant Collectorof'Central Excise, Marine and Prevention Division, Bombay,fileda complaint alleging. that the appellant had committed offences ounishable under Section 135(a) and(b)of the Customs Act. The appellant had denied beinginpossession of the offending goods althoughhehad admitted theproduction· of keys from his ,possession. The trying Presidencyfagistrate convicted him under section135(b)(ii)of the Customs Act. 1962 and sentenced himtosixmonths rigorous imprisonment and a fine ofRs.2,000/,and, in de- fault, to three months further rigorous imprisonment. The High Court dismissed hisappeal. . This appeal has been preferred on the basis of the special leave granted by this Court. |
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| G | Ttwasconiended for the appellantthat:(i)the presumption contained in s.123( 1) of the Act would not place theonus- of proving innocent possession of the goods in question upon the appellant; and.(ii)the goods in respectof which the appel1antwasprosecuted were not.seiz.edunder the Act. Reje::ting the contentions and. dismissing the appeal. the court |
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HELD: (i) Though lighters and flints were notified provided in Section 123(2), in the Official Gazette of 26-8-1%7 the provisions of Section 123(1) which only lay down a procedural rule, collld be applied when · the case. came up for tril before the Presidency Magistrate. He divided it on 15-7-1969. The complaint itself was filed on 30-10-1968. It i's immaterial that the appel !ant was found in possession of the goods on 21-4-1967. [542·B-C] H (ii) !h~ verv appearance of the goods and the manner in which they were packed rnd1cated that they were newly manufactured and brought into this co~~try very recently from another country. The inscriptions on then1 and wnting on the boxes were part~ of the state in wh.ich t]i~ goods in unopened boxes were found from which inferences about their origin and r~cent import
5 40
SUPREME COURT REPORTS
[1976] 1 S.C.R.
could arise. The appellant's conduct, including his untruthful denial of their A possession, indicated consciousness of their smugglied character or 1nens rea. There was some evidence· to enable the courts to come to the conclusion that the goods must have' been known to the appellant to be smuggled even if he was not a party to a fraudulent evasion of duty. [543 B-D] Gian ChCJnd & Ors. v. The State of Punjab, [19621 Suppl. 1 S.C.R. 364, Collector oj Customs, Madras & Ors. v. D. Bhoonnurt A.I.R. 1974 S.C. 859, M/. Kanungo & Co. v. The Cdllector of Custo111.9, Calcutta & Ors. A.I.R. (972 B S.C. 2136, lssardas Daulat Ra.m & Ors. v. The Union of India & Ors. [1962] Supp]. I S.C.R. 358, Gopa/ Shcorey v. The State of Bombay [19591 S.C.R. 919 and The State of Punjob v. Gian Chand & Ors. Criminal A·ppeal No. 195 of 1962---<lecided by this Court on 2A- 1968, referred to. CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74 of 1971. Appeal by Special Leave from the Judgment and Order dated the c 25th January 1972 of the Bombay High Court in Criminal Appeal 1025 of 1959. N. H. Hingoorani and Mrs, K, Hingoorani for the Appellant. S. B. Wad and M. N. Shroff for the Respondent. The Judgment of the Court was delivered by .D BEG, J.-The appelJant before us by special leave to appeal was convicted under Section 135(b) (ii) of the Customs Act, 1962 (hereinafter referred to as 'the Act'), and sentenced to six months rigorous imprisonment and a fine of Rs. 2,0CYJ/-, and, in default, to three months further rigorous imprisonment. Goods in respect of which this offence was found to have been committed were also confiscated. E On 21-4-1967, Police Officers of the Anti-Corruption and Prohibition Bureau, Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deo.ii Street, Bombay. This room was divideld by partitions into three parts. In the central portion the police found the appellant and three other persons. This portion was again sub-divided with a locked connecting door fixed in the pasF sage to the sub-divided part. This was opened by one of the two Godrej lock keys produced by the appellant from a si:!e pocket of his trousers. Eleven wooden boxes covered with jute cloth and secured by iron strips were found there. On opening them, six of them were ..l.-· • found to contain cigarette lighters of "Imco Triplex Junior" brand "Made in Austria''. Each of the six boxes were tightly packed with 1200 lighters. The remaining five boxes contained fifty sealed tins G of flints for cigarettee lighters which bore the following writing : "Tcgo Lighter Flints of Superior Quality Made in Germany". On the wooden boxes containin the lighters were found written "Dubai" and "Made in Austria". The five boxes containing flints had the words "Dubai" and "Made in West Germany" inscribed on them. A pan· chnama was prepared before Panchas. A rent receipt in the name of ' the appellant in respect of room No. 10, in this house, of which a por- H lion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of ):he appellant together
BALUMAL V, MAHARASHTRA (Beg, J.)
541
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[1976] 1 s.c.R.
SUPREME COURT REPORTS
542
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t!J,ey are smuggled goods, the burdeu of proving that they are not smuggled goods shall be on th.e person from whose possession the goods were seized. (2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches, and any other class o~ goods which the Central Government may by notification in the Official Gazette specify".
It is true that lighters and flints were notified as provided in Section 123(2), in the Official Gazette of 26-8-1967. Nevertheless, as the provisions of Section 123(1) of the Act only lay down a procedural rule, they could be applied when the case came up for trial before the Presidency Magistrate who actually decided it on 15-7-1969. Indeed, the complaint itself was filed on 30-10-1968. It is immaterial that the appellant was found in possession of the goods on 21-4-1967. There is, however, another objection to the applicability of Section 123(1) of the Act. It is that it would apply only tll goods seized under the Act. It is contended that the goods in respect of which the appellant was prosecuted were not seized under the Act. Reliance was placed for this contention upon Gian Chand & Ors. v. the State of Punjab(,!).
Even if the goods with which we are concerned here were not seized under the Act, as provided by Section 111 of the Act, it is contended on behalf of the State that Section 106, read with Section 114 of the Evidence Act, was sufficienno enable the prosecution to ask the Court to presume t]Jat the appellant knew that the goods must have been smUl?,l!led or imported in contravention of the law. The appellant had not produced evidence to show that the goods were legally brouJl,ht into India. Reliance was placed on behalf of the prosecution on : Collector of Customs, Madras & Ors. v. D. Bhoormull{2); Mis. Kanungo & Co. v. The Collector of Customs, Calcutta & Ors.("), Issardas Daulat Ram & Ors. v. the Union of India & Ors.(4 ), Anant Gopal Sheorey v. The State of Bombay(").
Learned Counsel for the appellant had. in his turn, relied upon The State of Punjab v. Gian Chand & Ors.(6 ). He contended that it was necessarv for the prosecution to prove : ( 1) that, the goods in question were actually smuggled or brought into the country without payment of customs duty at a time when payment of such duty had become obligatory; and, (2) that, the appellant was dealing with them knowing them to be smuizy;led goods. It was contended that mere possession bv the accused of such goods could not enable the prosecution to apply Section 106 of the Evidence Act when the appellant could not know where the goods caine from. It was urged that there was no evidence which could enable the api>ellant to know where the goods came from or when the goods were imported or that duty, if l~'l'i!ible, wa~_not paid on them. The admissibility and sufficiency of (1) [1962] (Suppl.) I S.C.R. 364. (2) A.I.R. 1974 S.C. 859. (3) A.I.R. 1972 S.C.R. 2136. (4) [1962] Suppl. (1) S.C.R. 358.
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(5) [1959] S.C.R. 919.
(6l Criminal Appeal No. 195 of 1962 -decided by this Court on 2-4-1963.
BALUMAL v. MAHARASHTRA· (Beg, J.) 543
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2 issues framed by the court
Whether the Section 123(1) presumption under the Customs Act applied to goods seized before their notification in 1967 but tried after.
Whether possession of imported cigarette lighters and flints with foreign inscriptions sufficed to prove knowledge that they were smuggled.
Colour shows how this judgement treated each authority
Gian Chand & Ors. v. The State of PunjabReferred
[1962] Suppl. 1 S.C.R. 364 · Who else cites this
Collector of Customs, Madras & Ors. v. D. BhoormullReferred
A.I.R. 1974 S.C. 859 · Who else cites this
M/s. Kanungo & Co. v. The Collector of Customs, Calcutta & Ors.Referred
A.I.R. 1972 S.C. 2136 · Who else cites this
Issardas Daulat Ram & Ors. v. The Union of India & Ors.Referred
[1962] Suppl. 1 S.C.R. 358 · Who else cites this
Anant Gopal Sheorey v. The State of BombayReferred
[1959] S.C.R. 919 · Who else cites this
The State of Punjab v. Gian Chand & Ors.Referred
Criminal Appeal No. 195 of 1962 - decided by this Court on 2-4-1963
6 provisions across 3 enactments
Balumal Jamnadas Batra
State of Maharashtra
M. H. Beg
P. N. Bhagwati
R. S. Sarkaria
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
