M.P. Saxena, J.
1. These are four revision applications viz. 1091, 1092, 1093 and 1094 of 1975 against the judgment and order dated 23-9-1975 passed by the Sessions Judge, Rampur, confirming the revisionists' conviction under Section 135(b) of the Customs Act and the sentence of one year's R.I. awarded thereunder. Criminal Revisions Nos. 1091, 1092 and 1093 of 1975 have been filed by Jalil Ahmad, Shafiq Ahmad and Latif Khan respectively while Criminal Revision No. 1094 of 1975 has been filed by Karirn Bux and Chhotey.
2. The prosecution case in brief is that on 5-4-19(i9 Sri Onkar Singh Rathore, S. I. Kemri district Rampur received information that a truck containing 'illegal goods' was coming from the side of Milak and would go to Kemri. On receiving this information Sri Rathor went at the Octroi Outpost and collected certain witnesses from the way. At about 8-15 A.M. he saw motor truck No. USD 6095 coming at a fast speed from the side of Milak. He gave signal to the driver to stop the bus but he paid no heed and drove it away towards Bilaspur side and then entered the town of Kemri. The police officer accompanied by the witnesses followed it and found the motor truck standing in front of the house of Nazir and Chhotey. The truck was in a starting position and Latif revisionist was sitting on the seat of the driver. Shafiq and Jalil Ahmad revisionists were the owners and cleaners respectively of the motor truck. Shafiq Ahmad and Chhotey were unloading the bags and Karim Bux and Jalil Ahmad were helping them. One Majid was also present. The police officer arrested all of them under Section 411, IP. C and took in his possession the goods contained in the motor truck. They comprised 22 cameras, terricot shirtings, Nylon terricot, Nylon felt crape, radiant yarn of silver and gold and other radiant yarn No. 777 (Kxs. 1 to 46) worth Rs. 92,275/-. These goods had markings of Korea, Hongkong and other foreign countries. Under orders of the A. D. M. (J) the goods were handed over to the Customs authorities and it is admitted that they have been confiscated as smuggled goods. The Assistant Collector (Customs) Central Excise, Rampur, filed a complaint against the revisionists and Majid under Section 135(b) of the Customs Act.
3. The learned trial court gave the benefit of doubt to Majid and acquitted him of the said charge. Therefore, it is not necessary to reiterate his defence, So far as the revisionists are concerned, Shafiq Ahmad gave out that he was not present on the spot but was working on the farm of one Pyare Singh. This Pyare Sin#h was examined by him in defence. Karim Bux and Chhotey revisionists gave out that Jalil Ahmad, owner of the truck, had asked them to unload the bags of wheat under bona fide belief that the bags contained wheat they were unloading them.
4. Latif Khan and Jalil Ahmad admitted themselves to be the driver and owner respectively of the motor truck but gave out that they were bringing their truck from Bareilly after getting it repaired. At Milak outpost Karim Bux and Chhotey revisionists and Majid met them and requested them to carry three or four bags containing shoes to Kemri. They allowed them to do so. Karim Bux, Chhotey and Majid also sat down in the motor truck. They did not know that the bags contained smuggled goods.
5. All the five revisionists were found guilty of the said charge and were sentenced to one year's R.I. The appeal filed against it was dismissed.
6. The recovery of aforesaid goods (Exs. 1 to 46) from motor truck No, USD 0095 on the said date and time is not at all contested by the revisionists. In the first place, learned Counsel for the revisionists have vehemently contended that the said goods were seized by the police officer and not by the 'proper officer' as defined in Section 2(34) of the Customs Act and the provisions of Section 123 of the Act was not applicable. I have given my anxious consideration to the same and I find no force in this argument. In this connection it is necessary to refer to the relevant provisions of the Customs Act 1962. Section 123 relates to the burden of proof in certain cases, it lays down 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 smuggled goods shall be on the person from whose possession the goods were seized. Sub-section (2) of this section lays down that it 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. In the instant case there is no controversy that there exists a notification of the Central Government in respect of the articles seized.
7. The question which arises for consideration is whether the goods were seized under this Act as contemplated by Section 123, Sections 100 and 101 relate to search and seizure. According to Section 100, if the proper officer has reason to believe that any person to whom this section applies has secreted about his person any goods liable to confiscation, he may search that person. Sub-section (2) enumerates the classes of persons to whom this section is applicable. Section 2(34) of the Act says that 'proper officer' in relation to any functions to be performed under this Act means the officer of Customs who is assigned those functions by the Board or Collector of Customs.
8. Section 101 lays down that 'without prejudice to the provisions of Section 100, if an officer of Customs, empowered in this behalf by general or special order of the Collector of Customs, has reason to believe that any person secreted about his person any goods of the description specified in Sub-section (2) which are liable to confiscation, or documents relating thereto, he may search that person.' Sections 111, 112 and 113 relate to confiscation of improperly imported goods. Section 111(i) lays down that 'any dutiable or prohibited goods found concealed in any manner in any package either before or after the unloading thereof' and brought from a place outside India shall be confiscated. Section 113 specifies the exported goods which are liable to be confiscated.
9. In the instant case the learned Counsel for the revisionists have vehemently contended that the goods in question were seized by a police officer under Section 411, I. P. C. and not by 'proper officer' under the Customs Act. Therefore, Section 123 was not applicable and the burden did not lie on the revisionists to prove that the goods were not smuggled goods. This contention has no force because the police officer had seized goods on the suspicion that they were 'illegal good;;'. When the proceedings under Section 411, I. P. C. were going on the goods were handed over to the Customs authorities under orders of the court. Therefore, when the goods were handed over to the Customs authorities they will be deemed to have been seized by the proper officer and Section 123 was attracted. In the case of Gian Chand v. State of Punjab : 1983(13)ELT1365(SC) also the goods were recovered by a police officer under Sections 411 and 414, I. P. C. and were later on handed over to the Customs authorities under orders of the court and it was held to be a seizure by proper officer. In this view of the matter the provision of Section 123 was fully applicable and it was for the revisionists to prove that the goods were not smuggled. Not an iota of evidence was adduced by them to prove that the markings on the goods were fake and they were actually manufacturer India. In its absence the goods would be presumed to be of foreign make on the basis of the markings existing thereon.
10. Another contention advanced before me is that the goods were not smuggled goods. Section 2(39) lays down that smuggling in relation to any goods, means an act or omission which will render such goods liable to confiscation under Section 111 or Section 113 of the Customs Act. As stated above. Section 111(i) clearly lays down that any dutiable or prohibited goods found concealed in any manner in the package either before or after the unloading thereof shall be liable to confiscation if brought from a place outside India. Since the goods had foreign markings and not an iota of evidence was adduced to show that the markings were fake the ordinary presumption would be that they were manufactured at the place of which markings were contained. They could not be received in India unless customs duty and other charges were paid. No evidence was adduced by the revisionists to prove that they had paid such duties. They did not even adduce evidence to the effect that they had brought these goods from Indian manufacturers. On the other hand they took false pleas, as discussed by the learned lower courts Therefore, the goods were clearly smuggled goods and have accordingly been confiscated.
11. The next contention of the learned Counsel for the revisionists is that the goods were in packets and the revisionse had no knowledge that they were smuggled articles. As held in the case of Hukma v. State of Rajasthan : 2008(228)ELT8(SC) and Labh Chand v. State of Maharashtra : 1975CriLJ246 , normally speaking, it is not possible for the prosecution to lead any direct evidence for imputing this knowledge. It will depend on the circumstances of each particular case. In this case there ' are host of circumstances to prove that the revisionists had knowledge that the goods were smuggled goods. In the first place, when the police officer gave a signal to stop the motor truck at the Octroi Post the vehicle was not stopped. On the other hand they sped up in order to evade the police. All the five revisionists were in the motor truck at that time as given out by Latif and Jalil Ahmad revisionists themselves. Therefore, there is no scope for argument that those who were unloading the goods were called specifically for this purpose and they started unloading innocently without having knowledge oj the nature of goods. Secondly, the engine of the motor truck was working even at the time when the goods were being unloaded. If the revisionists had no mala fide intention, they would have stopped the engine and unloaded the goods at ease. The engine was kept functioning so that after unloading the goods quickly the vehicle may be taken away and the police may not be able to catch hold of them. However, the evidence on the record shows that the Octroi Outpost was not very far from the place where the unloading was going on and the police officer took no time to reach there. The revisionists also gave conflicting versions about the unloading. All these facts and circumstances clearly point to the conclusion that the revisionists did not have a clean conscience. They knew that the articles were smuggled goods and they were bringing them without complying wilh the requirements of law. They were, therefore, rightly convicted by the learned lower Courts.
12. So far as the question of sentence is concerned, the goods were seized on 5-4-1969 to which about 10 years have now expired. The revisionists have already remained in jail for about 10 days and it would not be in the fitness of things if they are sent to jail after a lapse of such a long time. It would suffice the ends of justice if, in addition to the sentence already undergone, sentence of fine is imposed on him.
13. All the four revision applications are dismissed subject to the modification that the revisionists' conviction under Section 135(b) of the Customs Act is maintained but their sentence is reduced to the period already undergone and to a fine of Rs. 500/- to each revisionist which the learned Counsel for the revisionists concedes will not amount to enhancement of sentence. In default of payment of fine each revisionist will undergo six months' R.I. Fine will be paid within two months from the date of receipt of the record by the trial court failing which the revisionists will surrender themselves in court or be taken into custody to serve out the alternative punishment. This judgment will also govern the other criminal revisions.