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Shanti Lal Mehta Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 334 of 1973
Judge
Reported inILR1983Delhi374
ActsCustoms Act, 1962 - Sections 110(2)
AppellantShanti Lal Mehta
RespondentUnion of India and ors.
Advocates: K.C. Aggarwal,; M.A. Rangaswamy,; M.C. Sekharan,;
Cases ReferredDhirajlal Amritlal Mehta v. Union of India
Excerpt:
(i) customs act, 1962 - section 110(2)--considered and explained--where no show cause notice is issued within six months, seized goods must be returned--provision held mandatory and obligatory--must be read along with section 124--section 123 considered--reasonable belief explained--must be based on some material and not on mere suspicion. (ii) words and phases--'seizure' and 'confiscation'--explained and considered. on 15-2-1969, the petitioner's premises were searched by the customs authorities and some ornaments and diamonds were seized. the petitioner explained that the articles did not belong to him and were not smuggled goods but belonged to the queen mother of nepal. the authorities enquired about this from the counsel general of nepal in india on 3-7-1967, who in turn informed.....avadh behari rohatgi, j. (1) this is a petition under article 226 of the constitution of india by shanti lal mehta, petitioner, who carries on business at calcutta under the name and style of mjs. chotalal amulekh & mohanlal as sole proprietor thereof. the petition is directed against the respondents, namely, the union of india, the central board of excise and customs, and the additional collector of customs. the facts : (2) these are the facts. on 15-2-1967 the petitioner's premises at calcutta were searched by the custom authorities. certain items of ornaments and diamonds were seized. a list of the seized articles was prepared. in his explanationn the petitioner told the customs authorities that the articles seized from him were not smuggled goods, as was believed by the customs, but.....
Judgment:

Avadh Behari Rohatgi, J.

(1) This is a petition under Article 226 of the Constitution of India by Shanti Lal Mehta, petitioner, who carries on business at Calcutta under the name and style of Mjs. Chotalal Amulekh & Mohanlal as sole proprietor thereof. The petition is directed against the respondents, namely, the Union of India, the Central Board of Excise and Customs, and the Additional Collector of Customs. The facts :

(2) These are the facts. On 15-2-1967 the petitioner's premises at Calcutta were searched by the custom authorities. Certain items of ornaments and diamonds were seized. A list of the seized articles was prepared. In his Explanationn the petitioner told the customs authorities that the articles seized from him were not smuggled goods, as was believed by the customs, but were the property of the queen mother of Nepal who had given them to him for repair, remaking and polishing etc. On this Explanationn the Additional Collector of Customs wrote a letter to Counsel General of Nepal in India on 3-7-1967 enquiring from him whether Her Highness, the queen mother, had entrusted ornaments and diamonds in question to the petitioner. On 24-7-1967 Counsel General replied to the enquiry and said that some ornaments were given to the petitioner for repair, remaking and polishing etc. sometime in January-February, 1976 during their Majesties' visit to Calcutta. But he denied that any ornaments were given for sale by queen Mother.

(3) As the penod of six months was going to expire on 14th August, 1967, the search having taken place on 15-2-1967, the Additional Collector on 4-8-1967 made an order extending the time for a further period of 3 months under the proviso to section 110(2) of the Customs Act, 1962 (the Act). Thus time was extended up to 14-11-1967. Thereafter the Assistant Collector of Customs issued a show cause notice on 10-11-67. In the show cause notice itself he ordered the release of certain items of the seized goods. But as regards others he required the petitioner to show cause why the seized diamonds and ornaments set with diamonds as specified in the notice should not be confiscated under clause (d) of section 111 of the Act and why penal action be not taken against him under section 112 of the Act. To this show cause notice the petitioner sent a reply on 27-12-1967. He pretested against the seizure of the goods as well as the extension of time. He said :

'IT is incumbent on the Customs Authorities to return all the goods seized from my possession. The purported extension granted by you till the 14th .November, 1967 for issuing show cause notice .to me is invalid, illegal, and of no effect, inasmuch as much extension, if any was granted without notice to me and without sufficient cause being shown in that behalf and in violation of the fundamental provisions of natural justice.'

(4) It will be seen that extension was challenged on the ground that it was made by an ex parte order without any notice to the petitioner.

(5) On 14-8-1968 the Additional Collector of Customs passed an order of confiscation of the goods. He also imposed a penalty of Rs. 25,000 on the petitioner. The petitioner appealed to the Central Board of Excise and Customs. The Board on 20-9-1971 modified the order of the Additional Collector and partly allowed the appeal. They released some more goods and remitted the penalty in full. In respect of item 6 to 11 and 16, which are the only items in dispute now, the Board upheld the order of confiscation. The petitioner filed a revision. On 30-5-72 the Central Government rejected the revision application On 23-3-73 the petitioner filed the present writ petition.

(6) The real question for decision in this case is whether the confiscation of the goods is lawful when the detention o the goods was unlawful. It will be remembered that the goods were seized on 15-2-1967. Six months expired on 14-8-67. During this period of six months no show cause notice was issued. The Additional Collector made an order on 4-8-1967 extending the time by three months. The extended period of 3 months expired on 14-11-1967. But what is significant is that the order of extension was made ex parte behind the back of the petitioner and without any notice to him. After the expiry of six months the customs authorities were bound to return the goods to the petitioner. In fact the petitioner specifically asked for the return of the goods on 27-12-1967 when he- made a reply to the show cause notice. The customs authorities paid no heed to his request. They refused to return the goods to him and, on the contrary, made an order of confiscation of the goods on 14-8-1968.

(7) One thing is clear from this narrative. On 14-8-1967 the customs authorities were bound in law to return the goods which inspire of the petitioner's demand they did not return to him. What is the effect of the wrongful refusal to return the goods This is the question for decision in this case.

(8) Section 110 of the Act says :

'110.(1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may size such goods : Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof' is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized: Provided that the aforesaid period of six months may, on sufficient cause being shown, be extended by the Collector of Customs for a period not exceeding six months. (3) The proper officer may seize any documents or things which, in his opinion, will be useful for, or relevant to, any proceeding under this Act. (4) The person from whose custody any documents are seized under sub-section (3) shall be entitled to make copies thereof or take extracts there from in the presence of an officer of customs.'

(9) Section 110 provides that if the officer has. reason to believe that any goods are liable to confiscation, he may seize the goods. The proviso enables the officer in cases where it is not practicable to seize the goods, to serve on the owner of the goods an order that he shall not remove, part with or otherwise deal with the goods except with the previous permission of sucfh officer. Sub-section (2) enables the officer to keep the seized goods for a period of six months. But when goods are seized under sub-section (1) of section 110, if a notice as provided for under clause (a) of section 124 is not given within 6 months of the seizure of the goods, the officer is bound to return the goods to the person from whose possession they were seized. The proviso enables the officer to get an extension of the period of notice from six months to one year by applying to the collector of customs.

(10) The true effect of the provision of section 110 is that if notice for further proceedings under section 124 is not served within the time of six months and in any event one year from the date of the seizure, the seized goods must be returned to the person from whose possession they were taken. This is an absolute obligation and a liability imposed on the customs under sub-section (2) of section 110 of the Act. The power to retain the goods is no longer available after the period has expired. Section 110 puts a limit to the power of seizure and retention of goods by the officer. When once action is taken under section 124, before the expiry of the period as contemplated in section 110 he may continue to retain the goods.

(11) After the expiry of six months, the retention of the seized goods by the customs in this case was illegal and without jurisdiction as the same was directly in contravention of sub-section (2) of section 110 of the Act. The right of restoration of the seized goods is a vested civil right which accrued to the owner of the goods on the expiry of six months. Case of Charan Dass Malhotra :

(12) Section 110(2) was incorporated in the Customs Act of 1962 for the first time. There was no such provision in the old Sea Customs Act of 1878. Upon the reasonable belief that certain goods are liable to confiscation, an officer of (he customs has now been empowered to seize such goods from any person. This power of seizure is an extraordinary power. Six months time is given to investigate the case, to collect evidence and to complete the enquiry. If within that period prima facie evidence of confisaction is not collected and the proper officer thinks that further investigation into the matter is necessary, the collector of customs under the proviso to section 110(2) is given the power to extend the period for a further period of 6 months. In dealing with this power to extend the time under the proviso the Supreme Court held in Assistant Collector of Customs v. Charan Dass Malhotra, : 1973ECR1(SC) that such power is quasijudicial and at any rate one which requires a judicial approach. While the power of seizure under sub-section (1) of section 110 can be exercised on the basis of reasonable belief on the part of the customs officer, the power to extend the lime to give notice under section 124(a) is to exercised only 'on sufficient grounds to be shown'. This expression envisages at least some sort of inquiry into the facts to be placed before the authority and the determination by him on those facts. The extension order, the Supreme Court has said, is not to be passed mechanically.

(13) The object of enacting section 110(2) of the Act is that a citizen should not be deprived of his right to property indefinitely upon a mere reasonable belief of an officer of customs that the goods are smuggled goods and liable to confiscation. A merciful legislature fixed six months time within which the concerned officer must collect evidence and material in support of his belief that the seized goods are liable to confiscation and to issue notice to the owner of the goods to show cause why the goods be not confiscated. Six months is the outer limit for the detention of the goods by the customs unless it is extended further. The further extention cannot be for a period exceeding six months. The extension beyond the original period of 6 months can only be made by the collector of customs 'on sufficient cause being shown' to him. If within this period, original or extended the concerned officer fails to make out a prima facie casein support of his reasonable belief that the goods are liable to confiscation, in that case the goods shall be returned to the person from whose possession they were seized.

(14) Now in Malhotra's case it was decided that on the original period of six months section 110(2) imposes a statutory obligation on the customs authorities to return the seized goods to the person from whom they were seized. The Court said :

'THEright to restoration of the seized goods is a civil right which accrues on the expiry of the initial six months and which is defeated on an extension being granted, even though such extension is possible within a year from the date of the seizure.'

(Malhotra p. 694).

(15) Consequently such a vested civil right in the owner cannot be defeated .by an ex parte order of extension of time by the collector.

(16) This right which the Supreme Court called a vested civil right cannot be defeated by the customs authorities by extending the time of six months behind the back of the owner. The extension to be valid must be given not on an ex parte determination by the collector but after giving to the owner a notice of the proposed excision and after hearing him. If he makes an ex parte order and does riot hear the owner of the goods on the question of extension, the extension order will be non-est. So power of extension under the proviso cannot be exercised without an opportunity being given to the person from whom the goods were seized.

(17) Applying the principle of Malhotra's case to the facts of the present case, it is clear to me that the order of extension dated 4-8-67 was bad. It was without jurisdiction and void ab initio on the simple ground that the petitioner was never heard on the question of extension. The order of extension, thereforee, is a complete nullity in law. It could not deprive the petitioner from whom the goods were seized of his right to have the goods restored to him on the expiry of six months from the date of the seizure.

(18) In Malhotra's case the Supreme Court held that power of extension conferred on the collector under the proviso to sub-section (2) of section 110 is a quasijudicial power If there is no extension or the extension is invalid the inevitable result is that a civil right accrues to the citizen to the restoration of the goods. It can be defeated only if the extension is validly made. If it is made behind the back of . the person from whom the goods were seized, the civil right is not taken away. On the facts of this case thereforee it must be held that on 14-8-1967 when the intial period of six months expired the right to the restoration of the goods vested in the petitioner which was not taken away by the order of extension dated 4-8-1967, which purported to extend the time by another 3 months, if the right of the petitioner to the restoration of the goods is not taken away the refusal to return the goods to the petitioner even when he asked for them specifically and expressly was contrary to law. It was a misuse of power. It was arbitrary. All arbitrariness is offensive to legality.

(19) The detention of goods was against the mandatory provision of law. The provision of section 110(2) is mandatory in nature. The legislature commands the officer to return the goods to the person from whose possession they v. ere seized if within six months of the seizure of the goads no notice in respect thereof is given under clause (a) of section 124. Sub-section (2) says that 'the goods shall be returned to the person from whose possession they were seized'. Now if the goods are not returned to the petitioner to which he was clearly entitled the detention of the goods by the customs authorities is unlawful after 14-8-1967. Anything that they do subsdquently to the goods will be illegal. The order of confiscation which the customs authorities passed on 14-8-68 must likewise be held to be illegal. In other words, the retention of the goods after 6 months from the date of the seizure was unlawful.

(20) The customs officer cannot retain the seized goods after the expiry of the initial period of six months. Notice under section 124(a) admittedly he had not given during this period. The extenson that he obtained was non-est because it was exparte and in violation of the principles of natural justice. So the customs authorities ought to have returned the goods to the petitioner. They did not do so, though he pleaded with them that he had become entitled to the restoration of the goods. This refusal was based not on any lawful authority but only on superior force. Against the customs authorities the petitioner could do nothing except to appeal to the courts. The authorities under the Act, namely, the Collector of Customs, the Central Board of Excise and Customs and the Central Government, equally paid no heed to his entreaties. All of them turned a deaf ear. The law was in favor of the petitioner. He was entitled to the return of his goods. But the authorities refused and, on the contrary, passed an order of confiscation in complete disregard of the law. A civil right:

(21) The right to the restoration of the goods is a vested civil right, as the Supreme Court has said. So on the expiry 'of the initial period of six months this right to the restoration of the goods vested indefeasibly and absolutely in the petitioner. It could be defeated and taken away either by issuing notice under section 124(a) of the Act within the intial period of 6 months or by obtaining a valid extension and by issuing notice under section 124(a) of the Act within the initial period Once this civil right, as the Supreme Court calls it, is vested in the petitioner, how can he be divested of this right The order of confiscation dated 14-8-68 amounts to divesting the petitioner of his right which the legislature lias conferred on him and which right vested in him on the expiry of the initial period of 6 months on the facts of this case.

(22) Section 126 says :

'126.(1) When any goods are confiscated 'under this Act, such goods shall thereupon vest in the Central Government. (2) The officer adjudging confiscation shall take and hold possession of the confiscated goods.'

(23) This section shows that only those goods can vest in the Central Government which have not vested in the owner by reason of his right to the restoration of the goods. In Uma Rajeshwarrao Patra v. Union of India and others, 1977 2 Calc Law Jou 266 on facts very similar to the facts in the present case Amiya Kumar Mukherji J: said :

'WHEREunder the law the goods 'shall be returned' in my view, such goods retained unlawfully, could not be confiscated under the Act. The goods which must have been returned under the law were retained by the Customs contravening the mandatory provisions of section 110(2) of the Act. A statutory authority exercising statutory power cannot act contrary to law. There could not be any decision in an adjudication proceeding under the Act if inherent nullity lies at the very root of the said proceedings. A quasi-judicial authority in exercising quasi-judicial powers cannot take advantage of its own illegality. The whole object of section 110(2) of the Act becomes nugatory and meaningless, if by contravening the mandatory provisions of the statute the collector of customs confiscates the seized goods which he has no right to retain and must have been returned to the owner long before.'

(24) In an unreported judgment of the Calcutta High Court M. N. Roy, J. has recently followed Uma Rajeswarrao Patra [See Kanti Lal Somchand Shah v. Collector of Customs, Civil Rule 5051 (W)74 decided on 3-6-1982(3).

(25) It is plain that the retention of the goods by the customs and their refusal to return them was in violation of the mandatory provisions of law. The petitioners civil right to the restoration of the goods at the expiry of the original period of six months remained vested in him throughout. It was never defeated. It was never taken away. The goods were vested in the petitioner by force of law. So the confiscation proceedings must be held to be a nullity. 'And there are no degrees of nullity'. Lord Reid has told us. (Anismipic v. Foreign Compensation Commission (1969) 2 A. C. 147. The refusal of the customs authorities to obey the law will render everything illegal that they do after the right to the restoration of the goods had accrued to the petitioner. Section 110 is based on seizure. Seizure means taking possession by force. It means 'take possession of contrary t0 the wishes of the owner of the property'. The idea that it is the unilateral act of the person seizing is the very essence of the concept (Gian Chand v. State of Punjab, : 1983(13)ELT1365(SC) .

(26) The seized goods can be retained by the customs only for a period of six months unless the period is validly extended by another six months. If not validly extended or if no notice is issued under section 124(a) the right to the restoration of the goods indefeasibly and absolutely vests in the person from whom the goods are seized. He is entitled to the return of the goods. The customs officer 'shall return' the goods to him. This is the mandate of the legislature. The goods are returned without any condition. The owner may do anything he likes with them. He may sell them, he may hypothecate them, he may even destroy them. What was taken away from him by force has to be returned to him peaceably. It is impossible to maintain that after such an indefeasible right has vested in the owner of the goods, the customs authorities can even then confiscate the goods simply because by disobeying the law they can achieve a result beneficial to the State by forfeiting the goods to the public domain.

(27) Confiscation is the off-spring of seizure. This, at any rate, is the theory of section 110. The Supreme Court has said that section 110(2) imposes a statutory obligation on the customs to return the goods to the person from whom they are seized. (Malhotra (supra) 689 (691) ). This statutory obligation the customs authorities refused to discharge. They treated the request of the petitioner for the restoration of the goods to him with contempt. They treated the law with scant respect.

(28) If the detention of the goods becomes illegal after the expiry of the period of six months it must inevitably be held that the confiscation of the goods is illegal. As the root is so is the fruit. If the root is contaminated die fruit must also be contaminated. Inherent nullity lay at the very root of the confiscation proceeding, as MookerJi, J. said. Confiscation here is the direct result of that overpowering force which the customs authorities exercised in refusing to return the goods to the petitioner. They did indirectly what they could not do directly. To uphold the order of confiscation in this case when the illegality is writ large on the face of the proceedings is to give validity to that which a competent statutory enactment has declared to be invalid. No one can take advantage of illegalities committed by him. The duty of each party is to obey the law.

(29) Counsel for the Union of India argued that the order of confiscation is not illegal simply because the goods were not returned to the petitioner. He elaborated his point by saying that the petitioner can sue the Government in damages for their illegal action. I cannot agree. No one will be heard to say this in our country. We are governed by rule of law. All law is meant to restrain, and to restrain the ruler as well as the ruled. The extraordinary power of seizure conferred by section 110 is not an absolute power. It is cobined, confined and caged. The legislature is careful to see that the power does not overflow the banks and dams that it has built to contain it. The legislature has given the power subject to the obligation to return the goods if no notice is issued under section 124 within the initial or validly extended period. If the goods are not returned in obedience to the statutory duty laid on the customs officer and are consequently confiscated, the right order for the court to make will be to strike down the order of confiscation itself which had its origin and being in illegalities and nullities. This will be a reminder to the authorities of what Thomas Fuller said : ''Re you ever so high, the law is above you'. Judicial Conflict:

(30) On the inter-relationship of section 110 and section 124 there is a divergence of judicial opinion-in this country. There are two schools of thought. One school says that two sections are independent and not interrelated. (See Collector, C &'C Excise v. Amruthalakshmi, : AIR1975Mad43 ., Munnilal v. Collector of Central Excise, Chandigarh, , All India General Transport Corporation v. Collector of Central Custom:,, 1975 (79) C.W.N. 663, J.K. Bardolia Mills v. M. L. Khunger, Deputy Collector of Central Excise & Customs, 1975^16) Gujarat Law Reporter 119(9), & M/s Mohanlal Devdan Bha`i v. M. P. Mandkar, : 1988(37)ELT528(Bom) .

(31) The other school of thought says that these two sections are closely related to each other. (See Mohd. Hanif v. Collector of Customs, : AIR1973All433 . A. M. Soni v. Union of India, 0043/1972 : AIR1972Guj126 , Uma Rajeswarrao Patrav. Union of India, (1977) 2 Calc Law Jou 266, Collector of Customs v. T. N. Khamibati, 1977 Crl. Law Jou 1331.

(32) So far as this court is concerned there are three decisions on the point. Two by B. N. Kirpal J. (Manubhai v. Hirani v. U. O.L.', C.W. 211 of 1971 decided on 15-10-1980 (14) and Sardar Kulwant Singh v. Collector of Central Excise and Customs, 1981 E L T 3 and one by a division bench of Sachar and Aggarwal Jj (Hemant Bahadur Lamba v. Union of India, Cri. Writ No. 89 of 1981 decided on 24-8-82(16). These decisions expressly dissent from the view of Andhra Pradesh High Court in Collector of Customs, Madras v. T. N. Khamibati (supra).

(33) In Collector C & C Excise v. Amruthalakshmi (supra) a division bench of Kailasam & Maharajan Jj was the first to take the view that these two sections are independent. They reversed the single judge and disagreed with the view that a vested right is created in favor of the owner of the goods when a show cause notice under section 124 is not given within six months as provided under section 110(2). (See page 46). With great respect to the learned judges this is against the supreme court decision in Malhotra's case where the court definitely ruled that a civil right accrued to the person from whom the goods were seized to the restoration of the goods which can be defeated only on a valid extension.

(34) The Madras case was followed by the Bombay High Court in Mohanlal Devdan Bhai (supia).

(35) Verma J. in Munni Lal (supra) was conscious of the difficulty that beset his path. He said :

'WHATwould be the effect of adjudication of confiscation of goods after the return of the same to the owner or to the person from whose pos- session the same had been seized, is a matter which is besides the point. The possibilitiy of non-availability of the goods after return of the same to the owner may not be excluded. The collector may or may not be able to get the same after the adjudication of the confiscation of goods when the same had been returned to the owner under sub-section (2) of section 110, but these considerations cannot, in my opinion, for the reason already recorded above, change or restrict the extent and scope of provisions of Section 124. Cash or G.C. notes, after return of the same to the owner under sub-section (2) of S. 110, may or may not be available on recording of adjudication of confiscation of the same, but a car or any goods like that may be readily available for taking possession thereof after adjudication of confiscation of the same even though the same had to be returned under sub-section (2) of Section 110.'

What about gold & diamonds Will they be available

(36) The law does not depend on the nature of the goods such as 'car or any goods like that'. No such distinction is made in section 124. This shows the utter futility of continuing confiscation proceedings after the goods have been returned to the owner. The learned judge says what would happen to the confiscation of goods after these have been returned to the owner is 'besides the point''. I am of the view that after the goods have been returned to the owner which the officer is bound to do under the Act nothing remains for adjudication and confiscation. After the goods are out of custody of the customs, the kemal is gone. only the husk remains. I will point out presently the difficulties which will render the continuation of confiscation proceedings meaningless. Effect of release of goods:

(37) In Malhotra's case the Supreme Court decided that an extension order 'would deprive the person from whom the goods were seized of the right to have the goods iestored to him on the expiry of six months from the date of seizure' (p. 695) and thereforee affected the rights of the citizen. The court thereforee came to the conclusion that the 'extension power under the proviso is not to be exercised without an opportunity of being heard given to the person from whom the goods are seized.' (p. 694). The court held that the Calcutta High Court was justified in ordering restoration of the watches in question to Malhotra.

(38) The facts of the instant case are very much similar. The only difference is that the Additional Collector of Customs has passed a'n order of confiscation. But that ought not to make any difference in principle. The order of confiscation is a nullity if the detention of the goods. beyond six months was a nullity.

(39) Counsel for the Union of India relies on the following observations of the supreme court in Malhotra's case:.

'THEsection (section 124) does not lay down any period within which the notice required by it has to be given. The period laid down in- section 110(2) affects only the seizure of the goods and not the validity of the notice.'

(40) The real question is not about the validity of the notice but about the effect of release of the goods on further proceedings. If six months expire and no notice is given under section 124(a) and there is no valid extension i.e. an extension after hearing the petitioner and after considering the prosand cons of the question, the goods shall be returned to the person from whom they are seized. Once the goods are returned the chapter ends. They vest in the person from whom they are seized absolutely and indeteasibly. A vested right cannot be divested. Now the question is: Can confiscation proceedings be continued thereafter My answer is 'No'. Unless the goods are available, they cannot be confiscated. As Mookerji J. said in Uma Rajeswarrao Patra :

'MOREOVERan order of confiscation rests on the theory of 'offending goods'. Where the goods are unlawfully imported, these goods become the 'offender' and they might be confiscated without finding out the actual importer. But for the purpose of confiscation of the goods physical existence of the goods is necessary.'

(page 273).

(41) Once the seized goods go out of the hands and custody of the customs there is an end of the matter. The offending goods cannot be tried in absentia. They are not there to receive the sentence of condemnation and forfeiture. No proof can be produced at the adjudication proceedings about the goods being smuggled. The goods cannot be valued. No personal penalty can be imposed because the penalty has to be on the basis of the value of the goods. It can be up to five times of the value of the goods (section 112). No criminal complaint can be lodged. For criminal prosecution the goods must be present for they are the proof, the very corpus of the crime. Adjudication proceeding would end in fiasco because the specific goods being not there they cannot be condemned and forfeited to the public treasury. Contraband or illicit property is the evidence of guilt. This is the theory of offending goods.

(42) The person from whom the goods were seized has got them back because 6 months or one year period z.s the case may be, has expired and no material has been found against him. He has gone home. He is quite happy. The goods are no longer tainted. The dark clouds of suspicion and smuggling no longer haunt him. If this view is not taken he will remain under constant fear till the crack of doom because no time limit is prescribed for issuing notice under section 124. It will be absurd to hold that the person from whom the goods were seized under section 110(1) and to whom they have been returned under section 110(2) can be asked under section 124 to show cause why the returned goods be not confiscated at any time till the doomsday. Such a proposition is merely ridiculous. Life would not be worth living on such terms. Life never has been lived on such terms in any age or in any country.

(43) B. N. Kirpal, J. in Sardar Kulwant v. Collector of Central Excise (supra) ordered customs to release the goods but allowed adjudication proceedings to go on. This will lead to inconsistencies and absurdities. What becomes of the vested civil right in pursuance of which the goods are returned to the man Can it mean that in the adjudication proceedings they can be confiscated without the goods being physically present The customs officer will then start on an errand of his own to trace the confiscated goods which had been returned to the man and then again seize them wherever and whenever he can find them for purposes of vesting in the Central Government. I cannot agree that the legislature mean such a futile exercise, for the goods in the meanwhile may have been destroyed or sold to innocent purchasers. In none of the decisions cited at the bar these difficulties have been answered.

(44) Government counsel referred me to Hemant Bahadur Lamba v. Union of India (Cri. Writ No. 89 of 1981) decided by Sachar and Aggarwal JJ. on 24-8-82. That a case of a different hue. Notice in that case under section 124(a) was issued within six months to the person from whom the car was seized. The court held that the petitioner who was the owner of the car was not entitled to a notice. A criminal complaint had been filed in that case and one Rana who had transported hashish in the owner's case had been found guilty and sentenced to 6 months imprisonment. The car was in the custody of the customs and the owner claimed that it be returned to him. The court declined the request and asked him to join the adjudication proceedings. That case presents no difficulty. The car being in the custody of the customs and notice under section 124(a) having been given to the person from whom it was seized the adjudication proceedings could be continued. The court referred to the decisions of other courts and expressed disagreement with the view of Andhra Pradesh High Court taken in Appellate Collector of Customs vs. T. N. Khamibati . In Manubhai C. Hiraniv. Union of India, C.W. 211 of 1971 decided on 15-10-80 Kirpal J. disagreed with the view of Andhra Pradesh.

(45) But the question which has arisen before me did not arise before the division bench which is binding on me. I decide the present case on the ratio of Malhotra's case. The extension being invalid and the goods having been detained in contravention of the statutory obligation the adjudication proceedings and the resultant order of confiscation are nullities. This is a new line of thought.

(46) Section 124 postulates the presence of the offending goods. Sub-section (a) of section 124 speaks of the notice to 'confiscate the goods'. Confiscation after the goods have been returned to the man is an anathema. It is a contradiction in terms. What is there to confiscate now The goods have been returned to the man in the discharge of statutory obligation under section 110(2). Cases in which criminal complaints have been filed along side the adjudication proceedings are in a class apart. There the goods pass into the custody of the criminal court. They become case property. But where there are no criminal proceedings the absurdities of continuing the adjudication proceedings are more marked.

(47) Sardar Kulwant Singh's case decided by Kirpal J. brings out the point in high relief. The goods are returned. But adjudication proceedings are allowed to continue. This is against the Supreme Court decision in Malhotra's case. In that case the show cause notice had been issued under section 124(a) by the customs. But the court held that the effect of the invalid extension was that the goods must be returned to the person from whom they were seized. The decision of the Calcutta High Court in ordering restoration of the goods to Malhotra was upheld. The court did not hold that adjudication proceedings can continue inspire of return of goods because notice under section 124(a) was valid.

(48) The effect of an invalid extension is that the detention of goods is bad. Adjudication is bad. Confiscation is bad. The reason is that thought the initial seizure was by lawful authority, the continued detention of the goods on the ground of an invalid extension is unlawful. Confiscation which is the end product of the adjudication process is infected by that illegality which supervened on the expiry of six months on the officer's refusal to return the goods to the man in contravention of the mandatory requirement of the statute. To my mind, this is what Malhotra's case decides. The truth is that the law is not uncertain. The task of statutory interpretation has made it uncertain. As Prof. Corwin has said. the law, in so far as it is affected by statute, is what the judges declare the statute to mean. What the judges say on the statute is part of the law. The judges are the architects of case law. They should construct it to achieve the objects of uniformity, clarity, and accountability: (Lord Devlin the Judge p. 182). Meaning of confiscation:

(49) The word 'confiscate' means to appropriate property to the use of the state. To adjudge property to be forfeited to the public treasury; to seize and condemn private forfeited property to public use. (Black's Law Dictionary 4th ed. page 371). Confiscation is based on seizure. Seizure is forcible taking of possession. Forcible possession is either by lawful authority or by overpowering force. Seizure is by lawful authority under see. 110(1). But refusal to return the seized goods contrary to section 110(2) is unlawful and without any authority. Because it is based on sheer force. This illegality spreads and infects the whole process and renders the entire proceedings void ab initio and a complete nullity.

(50) The right to the restoration of goods which accrues to the person from whom the goods are seized is a 'vested' right, meaning thereby a right to absolute ownership of the goods and not subject to be defeated by any subsequent proceedings taken against the goods in absentia. The legislature in effect is saying to the officer : 'Return the goods to the man. You have no evidence that the seized goods are smuggled goods.' If the goods are gone they are gone for ever. The legislature is not contemplating once vesting the goods in the owner under section 110(2) and then divesting him under section 126 after confiscation proceedings. The supreme court view in Malhotra's case is positively against divesting. Once the goods go out of the custody of customs by force of the statutory provision contained in section 110(2) the chapter closes and the matter ends.

(51) The essence of the concept of confiscation is that the offending goods are taken by the state as its own property. The owner of the goods is deprived of the property and it is appropriated to public use. Taking of private property to public use as being forfeited to the state is confiscation. Confiscation is punishment for smuggling. So possession of goods by the customs is essential for making an order of confiscation, section 110(1) says that the customs officer will take forcible possession of the goods. The proviso says that if it is not practicable to seize any such goods, the officer shall serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. This means that the goods will remain in custodia legis. The dominion of the goods passes to officer. There is a prohibitory order. But if the goods are returned under section 110(2) either because no notice is issued under section 124 within the initial period of six months or time is not extended after hearing the owner on sufficient cause there can be no confiscation thereafter. Because the goods go out of possession of the customs officer. I cannot find any indication that the word confiscation issued by the Act in any but its ordinary and general signification.

(52) If I am right in this conclusion the view of the division bench of Andhra Pradesh High Court in Collector of Customs v. T. N. Khamibati (S. Rao & Muktadar JJ.) appears to be the correct one. It has correctly interpreted and followed Malhotra's case decided by the supreme court.

(53) I would have ordinarily referred this cass to a larger bench but in view of the fact that I have decided this case on these two grounds : (1) that the detention of the goods by the customs beyond six months was a nullity and (2) that the petitioner's vested civil right cannot be taken away, it is not necessary to refer it to a larger bench. These two grounds mark an independent line of thought. They flow from Malhotra's case. On these premises it must inevitably follov that confiscation was without jurisdication and a nullity. In addition to this I have held in a later part of this judgment that the seizure was also illegal because it was not based on any reasonable belief. So reference to a larger bench is unnecessary.

(54) Calcutta decision in Uma Rajeswarrao Patra v. Union of India (supra) is a correct application of Malhotra's case. Malhotra's case has not always been correctly understood and applied and is one single source of judicial conflict. Allahabad, Andhra and Calcutta hold that there is a connecting link between the notice of confiscation of the goods under section 124 and retention of the seized goods under section 110(2). Madras, Bombay, Gujarat and Punjab hold that the two sections are independent. Madras decision in Amruthalakshmi denies the vested right of the owner of the goods. In Punjab Munni Lal's case followed Madras. In Bombay the facts in Mohan Lal Devdan Bhai were complicated by the fact of a criminal complaint pending against the man. All the decisions refer to Malhotra.But the judicial gloss on that case differs from court to court and even in the same court as in Gujarat. The Calcutta view in Uma Rajeshwarrao is refreshingly original. It is surprising that this case has not been noticed in any reported decision so far.

(55) I am conscious of the fact that Kripal J. and the division bench of this court have dissented from Andhra case in Collector of Customs v. T. N. Khamibati (supra) but that does not matter because I have founded my decision on Malhotra's case. T.N. Khamibati, in my opinion, does nothing more than follow Malhotra. Malhotra's case expounds the theory of vested civil right. The facts of the present case show what the nature and effect of such right is. 'It is a civil right of a citizen to the restoration of the goods on the expiry of the period, whether initial or extended.' (Malhotra p. 695). There being a statutory obligation on the officer under section 110(2), there is a corresponding right in the person from whom the goods are seized to have them restored to him. (page 691). Manubhai C. Hiranfs case :

(56) With respect to Kirpal J. I think that Manubhai C. Hirani was wrongly decided. In that case Rs. 84,0001- were seized from the petitioner on 26-1-1965. Notice under section 124 was issued on 19-10-65. Admittedly notice under sec- section 124 was issued after six months of the seizure. No extension was sought. The petitioner claimed return of the seized amount. The court rejected the request on the ground that the Collector of Customs had passed an order of confiscation on 7-11-1967. The learned judge dismissed the writ holding that sections 124 and 110 are independent. He said this :

'THEquestion however arises that if there is no such valid extension as contemplated under section 110(2), can it in any way affect the proceedings which are initiated under Section 124 of the Act. In my opinion the answer must be in the negative....... The issuance of a notice under s. 124 and the completion of the proceedings of adjudication thereafter are in no way connected with the provisions of S. 110.'

(57) This is a good illustration of the primacy that courts have given to section 124. This case gives undue weightage to the power, of confiscation and minimises the importance of sub-section (2) of section 110 to such an extent that by giving undivided hegemony to section 124 the right to restoration of goods is completely destroyed.

(58) Manubhai C. Hirani is a representative decision of that school of thought which believes in the principle of independence. They take the view that ss. 110 and 124 are entirely independent and are in no way connected with each other. Manubhai shows that even if the right to restoration of goods had accrued to the petitioner it can be denied to him on the ground that collector had made an order of confiscation under section 124. This case exemplifies the death of the right of the individual to the restoration of the goods , guaranteed to him by the legislature under section 110(2). The order of confiscation made by the collector is destructive of the citizen's right under section 110(2), the court assumed.

(59) So it comes to this that if the notice to show cause is issued under section 124 and the man comes to court immediately thereafter challenging the notice on the ground that he had become entitled to the restoration of the goods the court will quash the notice and order the collector to return the goods to him. This is what happened in Malhotra. But if the petitioner comes to court after the order of confiscation even though the right to the restoration of the goods had accrued to him, he is told that since the order of confiscation has been passed his right to restoration of goods cannot be enforced as happened in Manubhai C. Hirani. Sardar Kulwant Singh's case :

(60) In Sardar Kulwant Singh, Kirpal J. following Malhotra held that the seizure cannot be permitted to continue beyond six months and the retention of the goods by the collector was illegal. He thereforee directed the collector to return to the petitioner the goods seized by him. But adjudication proceedings against the petitioner in pursuance of the notice issued under section 124 he allowed to continue. Relying on his own decision in Manubhai C. Hirani he held that the notice under section 124 cannot be challenged on the ground that the same has not been issued within a period of six months of the seizure.

(61) Now the law cannot be so illogical and inconsistent as these three cases, namely, Malhotra, Manubhai C. Hirani and Sardar Kulwant Singh would show. In Sardar Kulwant Singh goods were allowed to be returned because adjudication proceedings had not been concluded and the order of confiscation had not been passed. But the request of the petitioner to return the goods to him .in Manubhai C. Hirani was rejected on the ground that there was an order of confiscation under section 124. Citizen's right to restoration of goods :

(62) So it means that even the goods which the collector was bound to return to the owner in terms of section 110(2) will not be returned to him because under section 124 the order of confiscation has been passed. The question is : Is the citizen's right to restoration of the goods under section 110(2) a precarious right So precarious that it can be defeated by the collelctor by issuing notice under section 124 and by passing an order of confiscation. It would appear that this order of confiscation on judges' reasoning is not merely a sentence of condenmation and forfeiture of the goods but it is more than that. It is a sentence of death on the individual's right to the restoration of the goods, a right which had accrued to him in terms of sub-section (2) of section 110. This civil right to the restoration of the goods which accrues to the man on the expiry of six months, though a vested right, can be defeated by the collector by one stroke of his pen when be passes the order of confiscation. I cannot subscribe to this line of reasoning which will make the civil right nugatory. Whether a person from whom the goods are seized asks for the return of the goods or not the customs officer is bound to return the same to him if no notice in respect of the seized goods is given under clause (a) of section 124 within six months of the seizure of the goods or within the time extended by the collector on sufficient cause being shown and after hearing the person affected. The words 'shall be returned' impose a duty of a positive kind. The customs cannot be escape from this stautory obligation. They must obey the statute and release the goods. The words are too strong to justify a milder view.

(63) The right to the restoration of the goods entrenched in section 110(2) cannot be defeated by an order of confiscation once it has accrued to the man and has vested in him. It can be defeated, as the Supreme Court has said, only either by issuing notice under section 124 within six months or within the time validly extended up to one year in all. But if no notice is given within six months nor any extension of time in validly made the right to return the goods is not taken away, it has vested in the man indefeasibly. The passing of an order of confiscation cannot defeat that right. The view of the independents, if I may use this term with respect, means the negation of the right of the individual under section 110(2). This is not a harmonious construction as the Boinbay judges claim in Mohan Lal. The principle of independence means the death of the right of the individual to the restoration of the goods. It raises the perennial issue of the authority of the State versus the righ of the individual. I cannot agree that the individual's right to the goods under section 110(2) disappears on the order of confiscation as mist disappears on sun rise.

(64) 'A power of search and seizure is in any system of jurisprudence an overriding power of the state for the protection of social security and that power is necessaily regulated by law' (M. P. Sharma v. Satish Chandra : 1978(2)ELT287(SC) . Section 110(2) regulates the power of seizure and is a fetter and limitation, to use the words of the independents, on the power conferred on the collector under section 124. This view I suppose is in accordance with the view of the supreme court in Malhotra. The right to restoration of the goods, if the man satisfies the conditions laid down in sub-section (2) of section 110, cannot be defeated by passing an order of confiscation. The right to goods accrues to him whether he asks for them or not', whether the order of confiscation is made or not. It was said that section 110 appears in chapter Xiii of the Act dealing with the machinery provisions. This does not whittle down its importance. The rights is a substantive right. It is a valuable right to property.

(65) The goods liable to be returned under section 110(2) are not returned. The customs confiscate them. This executive action is supported by independents, as the cases show. But, in my opinion, this is entirely illegal. It must be condemned and not upheld.

(66) The fact remains that seizure of goods which was by lawful authority at its inception becomes illegal after the expiry of six months in this case. The continued detention of goods beyond six months is illegal. This illegality eaters into the adjudication proceedings and vitiates the confiscation order. The independent school condones this illegality, as it were, by resorting to section 124. To them the facts are nothing and interpretation is everything. Cases holding that the two sections are independent show this. This case vividly illustrates how the owner can be deprived of the protection of the law and how the due and orderly administration of the law can be diverted into a new course, which may serve as an evil precedent in future.

(67) As the practice of search raises many issues to the liberty of the individual the practice of seizure raises many issues as to his right to property. Illegal exercises of search and seizure result in unauthorised confiscation of goods. The law is deeply concerned for the rights of the individual. In the end the personality of the judge is the only guarantee of justice, as Ehrlich has said. Reasonable belief:

(68) The other question which was argued before me was that' the customs officer did not act on any reasonable belief when he searched the petitioner's premises on 15-2-1967 and seized the goods. Section 110 opens with the words ''if the proper officer has reasons to believe, that any goods are liable to confiscation under this Act, he may seize such goods.' What is the meaning of 'reasonable belief' Did the officer entertain reasonable belief in the facts and the circumstances of this case This is the other question to be decided. The Supreme Court has said 'that reasonable belief is a pre-requisite condition of the power of seizure that the statute confers on the officer. (See Collector of Customs v. Sampathu Chetty, : 1983ECR2198D(SC) . The preliminary requirements of section 110 is that the other seizing should entertain a reasonable belief that he goods seized were smuggled.

(69) Reasonable belief as required by section 110 refers to the point of time when the goods in question are seized and not to a stage subsequent to the act of seizure. (M. G. Abrol v. Amichand, : AIR1961Bom227 . The condition precedent that there was such a reasonable belief anterior to the seizure must exist before the presumption under section 123 can be invoked. Section 123 says :

'123.Burden of proof certain cases (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 (a) in a case where such seizure is made from the possession of any person, (i) on the person from whose possession the goods were seized ; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person ; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized. (2) This section 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.'

(70) In Babulal Amthalal Mehta v. Collector of Customs : 1983ECR1657D(SC) , while considering the provisions of s. 178-A of the Sea Customs Act 1878, it was observed :

'THOUGHthe word 'smuggling' is not defined in the Act, it must be understood as having the ordinary dictionary meaning, namely, earning of goods clandestinely into a country.'

(71) Where section 123 cannot be invoked it would be for the customs authorities to prove that the goods were imported after the restrictions against import were imposed. (Amba Lal v. Union of India Air 1961 Sc 264. In Pukhari v. D. R. Kohli, : 1983(13)ELT1360(SC) , the Supreme Court said that when the court was dealing with the question as to whether the belief in the mind of the officer who effected a seizure, was reasonable or not, the court was not sitting in appeal over the decision of the said officer. All that it could consider was whether there was any ground which prima facie justified a reasonable belief. That the officer had reasonable belief must be stated in the notice to show cause. It must be adjudicated upon by the authorities under the Act. At the stage of appeal or revision from the orders of the officer adjudging confiscation each successive appellate or revisionable authority has also to address itself to this requirement of reasonable belief.

(72) The seizing officer either by his own evidence or other materials placed before the adjudicating authority, has to prove to its satisfaction that there was ground for him to reasonable believe that the goods were smuggled goods, that is to say that the goods were imported into the country and imported at a time and place when they were restricted or prohibited from being imported. If the adjudicating authority is not satisfied that the goods were seized on a reasonable belief section 123 cannot be invoked and in that event it would be for the customs authorities to prove that the goods were smuggled and section 123 in that event would have no application. If, thereforee, section 123 is wrongly applied and the presumption there under is raised, without the condition precedent there under having been satisfied, the entire inquiry and the order passed therein would be vitiated. In Collctor of Customs v. Sampathu Chetty (supra) the Supreme Court under the old Sea Customs Act of 1878 said :

'THEentire evidence in the possession of '.he seizing officer would be and has to be before the officer adjudicating the confiscation under s. 182 of the Sea Customs Act. No doubt, on the language of s. 178-A the presumption of the goods being smuggled arises only when-the seizure is made by an officer entertaining a reasonable belief that the goods are smuggled, and in that sense the reasonable belief of the seizing officer is a pre-requisite.for the statutory onus to arise. It is also true that at the stage of adjudication the reasonableness of the belief of the officer effecting the seizure that the goods are smuggled would be the subject matter of investigation by the adjudicating officer. Nevertheless it is maifest that at the stage of the adjudication (when only the rule of evidence laid down by the section comes into operation) the very facts which led the seizing officer to effect the seizure, as distinguished from their significance as affording a reasonable belief for the seizing officer to hold that the goods are smuggled, are before the adjudicating officer. These facts which justified the seizing officer to reasonably believe that the goods were smuggled would certainly import a rational connection between the facts on which the presumption is raised and the fact to be proved, so that whatever other constitutional infirmity might attach to the impugned provision, the lack of rational connection is not one of them.'

(73) It would be necessary, thereforee, before any person could be called upon to prove that the goods seized from him were not smuggled goods, that the customs officer making the seizure must proceed upon the foundation of a reasonable belief inspired in him by some definite material by way of some definite information or otherwise so that he could be said to have seized the goods in a reasonable belief that they were smuggled goods. (Bapalal v. Collector of Central Excise, Air 1965 Guj 135. The question is whether the record before me shows that there was a reasonable belief in the mind of the seizing officer that the goods were smuggled goods. It does not appear to me that he had entertained any reasonable belief at the time of seizure. Neither the board on appeal, nor the Central Government applied their mind to this question. Two Reasons :

(74) Applying the principles of these cases to the facts of the present case what do we find Two reasons were given in support of the reasonable belief. One is that the customs authorities received some information. What is that information It was never disclosed to the petitioner. Nor was it disclosed to the adjudicating authorities. Very vague words such as 'on information received' are used in the show cause notice. The information on which the customs authorities act must be definite information. No one suggests that they must disclose the name of the informant. That would be detrimental to investigation and against public interest. The least they can do is to give the gist of the information so that the person from whom the goods are seized knows the natue of the information received by the customs. To hold otherwise would mean that the customs officer can act on any information, wishy-washy though it may be, received from the underworld the nature of which the man in the over world will not be entitled to know. The words 'reasonable belief' used in section 110(1) are intended to checi' the exericse of the powers given to the customs officers arbitrarily and without any foundation at all, to the harrasment of the general public : The customs officer must have some definite materials by way of some definite information to form the foundation of his reasonable belief (M. G. Abrol supra).

(75) The second reason for entertaining a reasonable belief is that the seized goods were not accounted for by the petitioner on 15-2-1967 when the officer seized the goods from his possession. The seized goods consisted of 20 items of ornaments and diamonds. Out of these six items were released before the show cause notice was issued. One item was released at the adjudication stage. Six items were released by the Board on appeal. Only 7 items have been confiscated. These consist of 2 packets of diamonds and 5 ornaments. The petitioner claimed that they belonged to the queen mother of Nepal. A letter was written to queen mother. On her behalf a reply was received that she had given certain ornaments to the petitioner turn polishing, remaking etc., though not for sale. But this was done later on. The letter was written on 3-7-67. The reply was received on 24-7-67. But at the time of seizure ail that the officer had before him were 2 packets of diamonds and 5 ornaments. Neither the diamonds nor the ornaments had any foreign markings or label to suggest to the Customs that these were smuggled goods. In the search list these two packets of diamonds are described as 'appearing to be diamonds'. This shows that the customs officer did not believe them to be diamonds on any reasonable ground. The ornaments had no foreign label or making. They were ordinary ornaments as are worn in this country. There was nothing peculiar about them. Nothing extraordinary. On this material could any reasonable man entertain a belief that these were smuggled goods

(76) The belief must be such as any reasonable man in the 'circumstances of the case would entertain about the existence or non-existence of a thing. Simply because the goods were not accounted for at that time does not necessarily mean that the goods were smuggled goods. Unaccounted goods may be stolen goods. Reasonable belief could be entertained either on the basis of some external inindicia or on the bais of some internal information that the 'goods had been illegally imported into India from Nepal or some other foreign country either without payment of duty or in contravention of any restriction or prohibition imposed by statute. There was nothing to suggest the foreign origin of the goods. There was nothing to suggested the illegal importation of the goods into the country.

(77) The goods must be smuggled goods. The word smuggled' means that the goods were of foreign origin and they had been imported from abroad. Only then does the presumption under section 123 arise. The goods themselves did not suggest that the petitioner was an old smuggler or a dealer in smuggled goods. If there was such information with the customs, they ought to have disclosed it. The goods themselves did not suggest any illicit importation. Nor was there any inscription on the goods which could be the basis of the reasonable belief that the goods were of foreign origin. There was nothing in the appearance of the goods to suggest that they had been newly manufactured and grought into this country very recently from another country. In a word there was nothing absolutely from which inferences about their origin or recent import could arise. It was not a a case where large quantity of gold with foreign makings was found hidden in the trousers of the accused as happened in Hukma v. State of Rajasthan, : 2008(228)ELT8(SC) .

(78) In fact there is a finding by the Board in favor of the petitioner supportmg his contention that there could be no reasonable belief in the mind of the officer when he seized the goods. On the penalty of Rs. 25,0001- imposed on the petitioner the Board observed : 'there is no definite evidence to show that' the appellant knew or had reason to believe that those items were smuggled. In the absence of this evidence the penalty imposed is not justified. The Board accordingly remits the personal penalty in full.' If the petitioner did not know that the goods were smuggled, how could the customs officer reasonably believe that the goods 'were smuggled. The petitioner knew better.

(79) The customs officer merely thought that as the goods had not been accounted for these are smuggled goods. At the time of seizure what happened was this. The petitioner was present at the shop. He told the customs officer that they were duly entered in his account books but his accountant had gone to the income-tax officer. The officer did not wait for the man to arrive to explain the entries to him. He seized the goods and took them away. This was not a case of reasonable belief. It was a case of suspicion. A case of speculation. A case of guess work.

(80) As a result section 123 did not apply to the case. There was no reasonable belief. No persumption could be raised under section 123. There was no obligation on the petitioner to prove that the goods were not smuggled. The burden of proof was wrongly cast on him. The entire inquiry . was vitiated.

(81) For these reasons the writ petition is allowed. The order of confiscation of the goods is set aside. The order of the Addl. Collector of Customs dated 14-8-68, the order of the Central Board of Excise and Customs dated 18-9-71 and the order of the Central Government dated 30-5-72 are quashed. The respondents are directed to return to the petitioner items 6 to Ii and 16 of the search list forthwith. The parties are left to bear their own costs.

(82) At the request of Mr. Chandrashekharan, counsel for the Union of India, the implementation of this order is suspended for four weeks.

(83) I announced this brief order on 26-10-82 at the conclusion of the hearing of the writ petition. Now I have given my reasons for doing so. November 9, 1982. (Avadh Behari Rohatgi) Judge

(84) I am glad to find that Pandse J. in the Bombay High Court in Dhirajlal Amritlal Mehta v. Union of India 1982 Exc L.T. 273 (Born. 25 has taken the same view as I have taken in my judgment. The argument that the authorities can confiscate the goods indegendently under section 124(a) of the Act was raised before him. He rejected the argument and said : 'The power of confiscation cannot remain available for all time to come in respect of the goods seized under S. 110 of the Act.' He held that 'the proceedings adopted by the show cause notice issued after expiry of six months are illegal and without jurisdiction' (p. 277). This judgment was brought to my notice after I had signed the order. Hence this fcotncte.


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