G.D. Khosla, J.
(1) This is an appeal by the State against the acquittal of the respondent, Krishan Lal, upon a charge punishable under S. 167, item 81 of the Sea Customs Act of 1878. The charge against the respondent was that a quantity of smuggled gold was recovered from his possession. He was convicted by the trial Court and sentenced to six months' imprisonment, but on appeal the learned Sessions Judge acquitted him on the ground that the contraband nature of the gold had not been established satisfactorily.
(2) I need not give the details of the recovery at length because the recovery of the gold is admitted by the respondent. Information was received by the Customs Department that the respondent would be arriving at a certain spot (a lorry-stand in Amritsar) and would be in possession of smuggled gold. A raiding party was accordingly organized and M. S. Bedi, R. S. Banis and Stnam Singh, all Customs Inspectors, were members of this party. At 4-30 p.m. on 5-3-1957 this party accosted the respondent and recovered from his possession five bars of gold believed to be of foreign origin. These bars bore the mark '999' and weighed in all 48 tolas 11 mashas.
The gold was concealed in the nefa of the under drawers worn by the respondent. There was one gold piece in his trousers. The respondent's story was that he had purchased this gold in the open market. He was given ample opportunity to produce evidence and substantiate his plea of bona fide, but no evidence was produced by him and eventually he made a statement in Court that the had no witnesses to examine and no evidence to produce.
(3) The question for our decision in this case is whether the presumption arising under S. 178-A of the Sea Customs Act is sufficient to hold the respondent guilty of the offence punishable under S. 167 of the Act. Section 178-A is in the following terms:
'178-A. Burden of Proof:-(1) 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.
(4) This section provides an exception to the general rule that an accused person must be presumed to be innocent until the prosecution have established all the ingredients which make up a criminal offence. Owing to the peculiar nature of the offence which is dealt with under the Sea Customs Act the Legislature thought it wise to put the onus of proving his innocence upon the accused person where there was a reasonable belief that he was in possession of smuggled goods and such goods were actually seized from his possession. If the prosecution can prove that the gold recovered from the possession of the respondent was smuggled gold as if in law a presumption to this effect arises then he will clearly be guilty of the offence under S. 167. In the present case gold was, in fact, recovered from him and the only question, therefore, is whether it is smuggled gold or not. Section 178-A provides that gold must be presumed to be smuggled unless this presumption is rebutted by the person from whom the gold is recovered.
There is also another pre-requisite, that is, that there must be a reasonable belief that the goods are smuggled. Belief is clearly a subjective matter because for a belief to exist there must be a believer and it is that believer who must believe that the goods are smuggled. In the present case there can be no doubt at all that the Customs Department had a reasonable belief that the respondent was in possession of smuggled gold because information was received by them and they acted upon this information. The mere fact that they decided to organise a raid and took with them the informer who was to point out the offender, shows that they believed the information conveyed to them and acted upon it. Therefore, the conditions required by section 178-A are fulfilled in the present case, and unless the respondent can show that the gold was not smuggled, he must be held guilty of the offence punishable under S. 167 of the Act.
(5) The learned counsel for the respondent has argued that this section violates the fundamental right which is guaranteed to every citizen under Article 19(1)(f) and also 19(1)(g) of the Constitution. His argument, in short, is that a citizen has the right to acquire, hold and dispose of property and to practise any trade or business. By enacting section 178-A the Legislature has effectively deprived him of his right because it has given the Customs authorities the power to interfere with the exercise of this right unless the citizen can prove his innocence. It seems to me, however, that there is no question here of any infringement of a fundamental right. The right guaranteed by Art. 19(1)(f) is in respect of property which has been lawfully acquired.
For instance, there is no fundamental right to hold and dispose of stolen property or to hold explosive substances or other dangerous materials. A man cannot say that he has the right to led an unleashed tiger through a crowded street or to explode a dangerous bomb where he may injure other people. The fundamental rights are to be exercised lawfully and are in respect of lawfully acquired property. Therefore, it cannot be said that where the Legislature imposes a certain kind of restriction upon smuggled gold which obviously could not have been acquired lawfully, any fundamental right has been infringed. The vires of this section were considered by the Supreme Court in Babulal Amathalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877.
In that case the house of a merchant in Calcutta was searched and a quantity of diamonds was recovered. The question raised before the Supreme Court was that since S. 178-A infringed Art. 14 of the Constitution, the seizure was bad in law and the petitioner could not be called upon to show that the goods were not contraband or smuggled. Their Lordships of the Supreme Court held that this section did not infringe Art. 14 inasmuch as there was a reasonable classification because of the peculiar nature of the goods dealt with by this section. Govinda Menon, J., who wrote the judgment, observed at p. 879 that Mr. Chatterjee, who appeared for the petitioner in that case, 'faintly argued that the provisions of Art. 19(1) (f) and (g) and Article 31 of the Constitution had been violated'.
This argument, however, was not seriously pressed and there can be no doubt at all that Mr. Chatterjee realised the weakness of his argument and forbore to press it before the Supreme Court. I can scarcely imagine that if there were any force in this argument, Mr. Chatterjee would not have pressed it. Our attention was drawn to an unreported decision of the Bombay High Court in Amichand Vallamji v. M. G. Abrol, Misc. Appln. No. 21 of 1957, in which Desai J., appears to have taken the view that section 178-A infringed the provisions of Art. 19(1) (f) and (g). With great respect to the learned Judge, he does not appear to have considered the nature of the property referred to in cls. (f) and (g) of Art. 19(1); it is clearly property which has been lawfully acquired. The Legislature can make a rule that the onus, in a certain case, of proving whether the property is or is not contraband shall be on the accused person.
There are many such exceptions to the general rule that the prosecution must prove all the ingredients of an offence before an accused person can be held to be guilty. There are certain obvious inferences which can be drawn under S. 114 of the Indian Evidence Act, but an instance which is more apt is to be found in the Prevention of Corruption Act where a Court may presume that certain money found in the possession of an accused person constituted illicit gratification. In the present case the Legislature has thought it fit to provide that where goods believed to be smuggled are in fact, recovered from a person, then the onus of showing that they are not smuggled or are honestly acquired is upon the accused person. It is, no doubt, possible to speak of a case in which the accused person may experience considerable difficulty improving his innocence, but in the vast majority of cases here bars of gold are recovered, the possessor will have no difficulty at all in showing and providing (proving?) that he came by them by purchase, inheritance or by gift.
In any event, were are considering the case before us. The story of the respondent was that he had purchased these bars in the open market. It would have been an easy matter for him to have called the shopkeeper from whom he purchased the bars and produced any receipt which he had or which he had given to the shopkeeper. He failed to do so, and, in fact he did not cite any witnesses at all and I cannot consider that any hardship has been occasioned by the throwing of the onus upon him by S. 178-A. In the very nature of things, the prosecution may find it extremely difficult to bring home guilty knowledge to a smuggler or a receiver of smuggled goods and there is nothing unjust in changing the onus of proof in a case of this type.
The matter has been examined from this aspect in detail by the Supreme Court in the case cited above and in saying anything more, I would merely be reiterating the arguments of Govinda Menon J., needlessly. The section has been held intra vires of the Constitution as far as Art. 14 is concerned and as regards Art. 19(1) (f) and (g) it is clear to me that these clauses re not infringed in any way because smuggled goods cannot be said to be goods in which anyone can claim a fundamental right.
(6) For the reasons given above, I would hold that the offence of being in possession of smuggled gold was proved against the respondent beyond all reasonable doubt. The order of acquittal announced by the learned Sessions Judge is liable to be set aside and setting it aside I would restore the conviction and the sentence of six months' rigorous imprisonment awarded to the respondent by the trial Court.
Tek Chand, J.