J.S. Bedi, J.
1. Boota Singh petitioner was convicted under Section 167 (read with item 81 of it? Schedule) of the Sea Customs Act, 1878, and sentenced to undergo rigorous imprisonment for ; term of two years by Shri Gurnam Singh, Magistrate 1st Class, Ludhiana, on the 2nd February 1960. He felt aggrieved against that order am filed an appeal in the Court of Session. The learn ed Additional Sessions Judge, Ludhiana, maintain ed the conviction of the petitioner but reduced hi; sentence to nine months' rigorous imprisonment vide his order dated the 23rd February, 1960. He has now come up in revision to this Court.
2. The story for the prosecution briefly runs as under : On receipt of information that a certain person was in possession of smuggled gold and would come to bazar Sarafan to sell it, Shri N. S. Bedi, Deputy Superintendent Intelligence Customs at Ludhiana, on the 13th March, 1957, at about 6 P.M., came to that bazar and secured the petitioner who was at that time going in the bazar carrying the Jhola, Exhibit P-l. After securing the petitioner Shri Bedi called Sukh Dial, Girdhari Lal and Charan Das P.Ws. who are shopkeepers of the locality, and opened the Jhola, Exhibit P-l, in their presence, and from the Bansani, Exhibit P-2, in it, recovered 30 gold bars, Exhibits P-3/1-30, bearing marks '999 and 10'.
The petitioner could not give any explanation as to how he came into possession of that contraband gold. The gold was taken into possession and the petitioner along with the above mentioned P.Ws, was then taken to the Customs Office in Model Town, Ludhiana, and on the basis of this recovery a complaint, Exhibit P. C. against the petitioner was lodged by the Assistant Collector. Departmental proceedings were also taken against him.
3. The petitioner denied the allegations against him and staled that he was married in village Sursingh in District Amritsar and had come to Ludhiana to see his friend Darshan Singh, a Foot-constable in the Railway police. Darshan Singh, however, was on duty and he came to the city to have a round. When he reached Chowk Sarafan, two persons ran away throwing a bag on the ground. Shri Bedi, who was pursuing the two persons said to have thrown away the bag, caught the petitioner on suspicion. Shri Bedi enquired from him regarding the persons who had run away, but the petitioner told him that he did not know their names, and denied having anything to do with the Jhola, Exhibit P-I, from where the gold in question is alleged to have been recovered. In support of this plea he examined two witnesses in defence, namely Amar Chand and Darshan Singh Foot-constable.
4. The learned counsel for the petitioner raised a number of points before me - legal as well as on facts. His first contention was that the notification by virtue of which the import of gold into India had been prohibited was not placed on record by the prosecution. The petitioner, therefore, did not know as to which of the provisions of the notification he had contravened, and accordingly his conviction could not he maintained. This argument is, however, falsified by the complaint lodged in this case which is marked Exhibit P.C.
In this there is a clear mention of the notification the provisions of which have been contravened by the petitioner. Under the circumstancesthe petitioner was under no illusion regarding the required notification. It is true that a copy of the notification in question had not been placed on the record but this point has been dealt with lucidly in Criminal Revn. No. 801 of 1959 by Dua J. It is clear from that judgment that the Court can take judicial notice of such notification.
5. The next point urged by the . petitioner's counsel was that the provisions of Sec. 178A of the Sea Customs Act are ultra vires of Article 19(1) (f) and (g) of the Constitution and, therefore, no presumption can be drawn that the gold recovered from the petitioner was smuggled gold, which was incumbent on the prosecution to prove. He submitted that this matter is pending before the Supreme Court and till then the decision of this case be postponed. I, however, see no force in the above submission of the petitioner's counsel either.
In State of Punjab v. Krishan Lal, (1959) 61 Pun LR 937 : (AIR 1960 Punj 664), a Division Bench of this Court consisting of G. D. Khosla and Tek Chand JJ., held that Sec. 178A of the Sea Customs Act does not infringe clauses (f) and (g) of Article. 19(1) of the Constitution of India because smuggled goods cannot he said to be goods in which any one can claim fundamental right. The same view was taken by another Division Bench of this Court which consisted of G. D. Khosla J. and myself in Gian Chand v. State, Criminal Revn. No. 1560 of 1958, and then again by the Division Bench consisting of Bishan Narain and Dua, JJ. in a case reported as Balbir Singh v. The Collector of Central Excise and Land Customs, New Delhi, (1960) 62 Pun LR 549 : (AIR 1960 Punj 488), in which they also agreed with the first two decisions of this Court.
Moreover, it is not known when this point is likely to come up before the Supreme Court - may be it takes a year or so. At any rate, in view of the above mentioned three Division Bench judgments of this Court it is hardly necessary to postpone the decision of this case, for an indefinite period.
6. The next point raised by the petitioner's counsel was that the provisions of Sec. 167, item 81 of the Sea Customs Act do not apply to the facts of this case. Section 167, item 81 runs as under :
'If any person knowingly, and with intent to defraud the Government of any duty payable thereon, or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquires possession of, or is in any way concerned in carrying, removing, de-positing, harbouring, keeping or concealing or in any manner dealing with any goods which have been unlawfully removed from a warehouse or which arc chargeable with a duty which has not been paid or with respect to the importation or exportation of which any prohibition or restriction is for the time being in force as aforesaid;
X. X X X X x X X X X X X such person shall on conviction before a Magistrate be liable to imprisonment for any term not exceeding two years, or to fine, or to both.'
The counsel submitted that there is no evidence that the petitioner intended to defraud the Government of any duty payable on gold or to evade any prohibition or restriction for the time being in force under or by virtue of this Act with respect thereto acquired possession of it nor is there any evidence on the record that he was in any way concerned in carrying, removing, depositing, harbouring, keeping or concealing or in any manner dealing with the gold which had been unlawfully removed from a warehouse, nor is there any material on the record to show that duty was chargeable on that gold which had not been paid or the importation of such gold had been prohibited.
This argument, in my opinion, is devoid of force for the reason that no direct evidence on such a point can be available, but all the facts and circumstances of a particular case are to be gone into. There is no doubt that importation of such gold is prohibited by the notification mentioned above. The quantity of gold recovered was worth' about Rs. 30,000/-. The petitioner is also not of a high status, and it is not expected that a man of his position would carry such a huge quantity of gold with him. Moreover, we find that the petitioner belongs to Amritsar District which adjoins the Pakistan border.
He was found with a bag containing the gold in question in bazar Sarafan. The petitioner has not explained as to how he happened to be carrying such a large quantity of gold and as to where-from he obtained the same or what was his purpose in coming to Ludhiana in the Sarafan bazar. All these circumstances clearly indicate that the petitioner was concerned in smuggling gold. It was for this reason that under Sec. 17SA of the Sea Customs Act, the burden of proof which otherwise is on the prosecution is shifted on to the offender.
When goods are recovered under this Act in the reasonable belief that those goods are smuggled goods, the burden of proving that those goods are not smuggled ones is on the persons from whose possession these were seized. As stated above, it we once come to the conclusion that the gold in question was actually recovered from the petitioner then the legal objections raised by the petitioner's counsel have no force whatsoever.
7. The counsel for the petitioner then drew my attention to Article 20(2) of the Constitution of India which lays down that no person shall be prosecuted and punished for the same offence more-than once, lie, therefore, submitted that the petitioner has already been punished for the recovery of the gold in question by the Customs Department as a result of which the gold has been confiscated and a heavy fine has been imposed on the petitioner, and he, therefore, cannot now be convicted and punished again under Sec. 167, read with item 81 of the Sea Customs Act in this case.
In support of his argument he cited Sewpujanrai Indrasanrai Ltd. v. Collector of Customs, AIR .1958 SC 845, which lays down that an order of confiscation or penalty under the Sea Customs Act is not a mere administrative or executive act but is really a quasi-judicial act. On the strength of this authority the counsel submitted that the proceedings before the Customs Authorities were also of quasi-judicial nature. On the other band the State counsel drew my attention to Maqbool Hussain v.State of Bombay, AIR 1953 SC 325, which lays down that the Sea Customs Authorities are not a judicial tribunal and the adjudging of confiscation, increased rate of duty or penalty under the provisions of the Sea Customs Act do not constitute a judgment or order of a Court of Judicial Tribunal necessary for the purpose of supporting a plea of double jeopardy,
This authority directly deals with the point at issue, while the authority quoted by the defence counsel does not. There is another ruling of the Supreme Court reported as Thomas Dana v. State of Punjab, AIR 1959 SC 375, in which after discussing both the authorities cited above, their Lordships (Subba Rao J. dissenting) took the same view as in AIR 1953 SO 325. I, therefore, see no force in the point raised by the defence counsel.
8. After disposing of the legal objections, we have now to see whether there is sufficient material on the basis of which we can say with certainty that the gold in question had been recovered from the petitioner. For this purpose we have the evidence of Sukh Dial (P.W. 1), Girdhari Lal (P.W. 2) and Shri N. S. Bedi (P. W. 3). It is true that there are minor discrepancies in the statements of P.Ws. 1 and 2, but reading the statements of these P.Ws. on the whole leaves no room for doubt that the gold in question in fact had been recovered from the possession of the petitioner. It may also be mentioned that Sukh Dial and Girdhari Lal P.Ws. had signed the recovery memo, Exhibit P.A.
While dealing with their evidence we have also to bear in mind that this recovery was made on the 13th March, 1957 whereas the statements of these witnesses were recorded on the 8th December, 1959, i.e. after a lapse of about 2 1/2 years. Under the circumstances it was physically impossible for anyone to remember the minute details. The two Courts below have believed their evidence on the point of recovery and I have no reason to differ from their finding.
9. The last submission made by the defence counsel was that the gold in question has already been confiscated and a heavy fine has been imposed on the petitioner by the Customs Department. Moreover, the petitioner has been dragged from one place to another in defending himself before the Courts and also before the Customs Authorities. He, therefore, prayed that the petitioner, who has already been enlarged on bail, be not sent behind the bars again and his sentence be reduced to the term of imprisonment already undergone,
I feel that there is considerable force in theabove argument, but at the same time I notice thatthe petitioner has so far undergone the sentenceof imprisonment for only one month and a coupleof days, which is inadequate. However, taking intoconsideration the fact that the petitioner has beenreleased on bail by this Court, I do not feel inclined to send him to the prison again. I, therefore, convert his remaining period of imprisonmentinto a fine of Rs. 300/-, to be paid within a month,In default of payment of fine he will serve the un-expired portion of imprisonment as ordered by theCourt below.