K. Sadasivan, J.
1. This appeal is by the Assistant Collector of Customs. Preventive Department, Customs House. Cochin. He was the complainant in SC. 1641 of 1968 on the file of the Sub-Magistrate's Court, Ernakulam. The complaint was filed by him, alleging that the accused Pratap Rao Sait of Broadway. Ernakulam. committed offences punishable under Section 135 of the Customs Act (Central Act 52 of 1962). It was alleged that smuggled gold was secreted by the accused in his premises, Door No. XVI/644 and 645, Broadway, Ernakulam, and on getting that information, the Assistant Collector of Customs issued an authorisation to the Preventive Inspector. Customs Office, Cochin (P, W. 4) to conduct search of the accused's premises. Accordingly, P. W. 4 and party conducted a search, and recovered M. Os. I to III (M.O. I. a tin; No. II two gold bars, and No. III gold sovereigns 17 in number) from Door No. XVI/644. The gold bars and sovereigns were kept in a tin concealed in a hole inside the chimney which was plugged with a loose brick. Ext. P-l. the search list was prepared, giving a copy of it to the accused. The accused's statement (Ext. P-3) was also taken. After, that the person of the accused was also searched, and Ext. P-4 report was made by P. W. 4 to the Assistant Collector of Customs. The latter issued a show cause notice to the accused, and confiscated the articles as contraband articles. The Collector of Customs then issued sanction to prosecute the accused, and the case was accordingly charged before the Magistrate. The learned Magistrate convicted the accused under Section 135(b)(ii) of the Customs Act (in short the Act) and sentenced him to Simple Imprisonment for two months, and a fine of Rs. 300/-which was set aside in appeal by the District Magistrate. The complainant has. therefore, come up in appeal against the acquittal.
2. Learned Appellate Magistrate has entered the acquittal mainly on the ground that the prosecution did not succeed in proving accused's possession of the articles. The search and recovery of the articles was also held to be illegal. Learned counsel for the appellant was at pains to show that the search and seizure was legal and according to the rules. Learned counsel for the accused on the other hand in supporting the order of acquittal, pointed out that the findings entered by the learned appellate Magistrate on some of the other points arising in the case, require reconsideration at the hands of this Court, He stated that the elements contemplated in Section 123 of the Act which have important bearing in casting burden of proof, have been approached by the learned Magistrate from a wrong angle. He stated also that the prosecution has not, succeeded in proving that M. Os. 2 and 3 are foreign gold, that the accused acted with the knowledge that they are foreign gold, and that Ext. P-3 statement of the accused, was voluntary and true etc. I think in the nature of the contentions put forward it is necessary to go into these questions in some detail. Respondent's learned Counsel argued that Section 123 of the Act is a deviation from the normal rule in a criminal trial regarding burden of proof. The normal rule is that it is the duty of the prosecution to establish the guilt of the accused; every element that goes to constitute the offence, has to be proved by the prosecution, and this burden never shifts. But Section 123 enacts that where any goods to which the section applies, are seized under the 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. The burden thus shifts under conditions specified in the section, and the conditions are:
(1) seizure of goods to which the section applies:
(2) seizure under the Act; and
(3) seizure in the reasonable belief that they are smuggled goods.
When these 3 elements are proved, the burden would shift to the accused to show that they are not smuggled goods. The question therefore is, how far the prosecution has succeeded in establishing the above three requirements of the section. The question of reasonable belief may first be considered because before issuing the authorisation it is essential that a reasonable belief that the goods are smuggled goods, should be entertained by the officer issuing the authorisation, Counsel argued that to shift the burden on the accused the seizure must be with reasonable belief that they are smuggled goods. Ext. P-6 is the authorisation issued by the Assistant Collector of Customs. It is a printed form which reads:
Whereas I have reason to believe that goods liable to confiscation ...are secreted in the residence of Sri. M. Pratap Sait at XVI/644 and 645, Broadway. Ernakulam, I hereby authorise Sri C. M. Isaac, Preventive Officer, Customs, Cochin-3 to search the above premises.
Before action is taken under Section 123 of the Act it is necessary that the proper officer should entertain the belief that the goods are liable to confiscation under the Act.
The significant word is 'belief and not 'suspicion'. In M. G. Abrol v. Amichand : AIR1961Bom227 . it was observed at p. 1073 that a belief in the existence of a thing requires a more solid foundation than in the case of a mere suspicion and that 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. It was also held that belief must be entertained at the time when the goods are seized. : AIR1967Bom138 .
In : AIR1961Bom227 the Court held further:
The contention that the reasonable belief, which is contemplated by Section 178-A may either be the belief in the mind of the Inquiry Officer at the stage of the Inquiry, or in the mind of the seizing officers themselves even after the seizure took place, cannot be accepted. There is one and only one construction possible of this section, so far as the point of time at which the reasonable belief should exist in regard to the seizure of any smuggled goods is concerned and the construction is that wherever the goods are seized, the officer seizing the goods must at the time of seizure have a reasonable belief in his mind that the goods that he was seizing were smuggled goods.
3. The Supreme Court has held in Pukhrai v. D.R. Kohli : 1983(13)ELT1360(SC) :
When the Court is dealing with a question as to whether the belief in the mind of the officer who effected the seizure was reasonable or not the Court is not sitting in appeal over the decision of the said officer. All that it can consider is whether there is ground which prima facie justifies the said reasonable belief. A person carrying a large quantity of gold and found travelling without a ticket may well have raised a reasonable belief in the mind of the officer that the gold was smuggled. The object of travelling without a ticket must have been to conceal the fact that the person had travelled all the way from Calcutta at which place the gold must have been smuggled'. No such ground which would prima facie justify the seizure, was available in the present case. In Ext. P-6 the search warrant, no mention is made that gold was secreted in the residence of the accused. The warrant stated in a general way. that goods liable to confiscation, were secreted without specifying the item of article in respect of which reasonable belief was entertained by the officer issuing the authorisation. In the decision of the Supreme Court cited above the officer was objectively satisfied from the conduct of the man that he was carrying gold.
4. The Raiasthan High Court has held in State v. Budhram that where in the application made to the Magistrate for issue of a warrant, there is no mention that smuggled gold was lying in the premises of the accused but all that was stated was that it was reliably learnt that dutiable and prohibited goods are secreted in the premises of the accused and even in the search memo there is no mention that the gold was seized as it was believed to be smuggled one, presumption under Section 178-A could not be raised. In such circumstances, the burden lay on the prosecution to prove that gold seized was smuggled. So also in the present case, as stated earlier, there is no mention in Ext. P-6 that gold was secreted. But in the complaint by the Assistant Collector. it was stated that the information received was that gold was secreted. This cannot be true, as in such a situation he would have stated in the authorisation itself that the information received was that gold was secreted. Ext. P-4 is the report dated 1-8-1967 filed by P. W, 1. Therein, we see no mention as to the reasonable belief. Neither P. W. 1, nor P. W. 4 has stated before court as to the nature of the belief entertained by them.
The Allahabad High Court in Seth Brothers v. Income-tax Commr. : AIR1965All487 in dealing with Section 132 of the Income-tax Act, 1961 which is a similar provision, observed:
The search and the seizure in this case leave no room for doubt that the Income-tax Officer did not at all apply his mind, and formed no opinion regarding the relevancy or usefulness of the account-books and documents for any proceedings under the Income-tax Act of 1961, Many documents were not examined, or even looked into. It is no excuse for the non-observance of the requirements of law that the number of books and documents was very large, and their examination would have taken considerable time. The correctness or otherwise of the opinion actually formed is not subject to enquiry. But if it is obvious that no opinion was in fact formed, the search and the seizure must be held as having been in excess of the powers conferred upon the Income-tax Officer.
5. Learned counsel for the appellant invited my attention to the decision of the Supreme Court in Gopikisan v. Asst. Collector, Customs. Raipur : 1967CriLJ1194 for the position that the belief to be entertained by the Assistant Collector need be subjective in nature, and not objective. The Court held:
Though he cannot make a search or1 authorize any officer to make a search unless he has reason to believe the existence of the facts mentioned in the section, the section does not compel him to give reasons. While it may be advisable, and indeed proper, for him to give reasons, the non-mention of reasons in itself does not vitiate the order. Nor can we agree with the appellant that the particulars of the nature of the goods and of the documents should be given in the authorisation. Obviously, no question of giving of particulars arises if he himself makes the search, but if he authorizes any officer to do so, he cannot give the particulars of the documents, for they will be known only after the search is made... The authorisation issued by the Assistant Collector of Customs in this case clearly mentioned that on information received it appeared that the appellant was in possession of contraband goods and documents relating thereto and also described the office and the residential premises wherein those goods and documents would be found. In the circumstances of the case we are satisfied that the specifications are sufficient to enable the officer authorized to make the search.
Of course, the section does not compel the officer to give reasons and the non-mention of reasons does not vitiate the authorization, even though it is always proper for the officer to give reasons. It is necessary that reasonable belief is entertained by the officer before he issues the authorization. But from, the materials available it is not possible to say whether any such belief was entertained at all. Before court P. W. 1 stated that they had information that the accused was dealing in contraband gold.
We had information that Pratap Rao Sait was dealing in contraband gold.
But in Ext. P-6 we see no statement that such an information was received. In the circumstances it is difficult to hold that Section 123 of the Act was strictly complied with so as to shift the burden on the accused. The materials available in the case do not show that before the authorization was issued to search the premises of the accused, the officer who issued the authorization, had the reasonable belief that smuggled gold was secreted in the premises of the accused. Of course, the non-compliance of this requirement of the section can amount only to an irregularity; the search that followed, cannot on that account be said to have been vitiated. All the same, it must be said as observed in : 1967CriLJ1194 (cited already) that it was advisable, and indeed proper to have satisfied the court of the reasons for the belief if at all, any belief was entertained.
6. It must also be said that the prosecution has not succeeded in showing that what was seized was gold, The article was tested by one Mathew. and his report is Ext. P-5. That Mathew was not cited as a witness in the case. In his place, one Ramaswamy was examined and Ext. P-5 was proved through him. Ramaswamy pleaded ignorance as to how gold could be tested. He only identified Mathew's signature. He was not able to say as to whether Mathew possessed any qualification in the matter of testing gold. From Ext. P-5 it is seen that the conclusions reached were based on the specific gravity test. P. W. 3 was not able to enlighten the court as to the efficacy or the details of the specific gravity test. Normally, the test applied is the furnace test. But that test was not applied. P. W. 3. though an M. Sc. degree holder, does not possess any proficiency in the matter of testing gold. He was not able to say the carrat contents of gold. When a straight question like '(how much carrat is sovereign gold' was put to him. he evaded saying '(I cannot testify to such things').
7. Ext. P-5, as already indicated, is not helpful in the matter, as it contains no data. The certificate in such circumstances, should contain actual data and not mere opinion of the analyst. This Court has held so in State of Kerala v. Narayanan Nair. 1969 Ker LT 645. That was a case under the Prevention of Food Adulteration Act; but the principle is the same, and is applicable to cases like this also. In Gouridas v, Govt. of Kerala 1965 Ker LT 951 a Division Bench of this Court had held:
The fact that the accused when examined by the doctor was smelling alcohol would not be sufficient to bring home the guilt to the accused.... A drunkenness certificate containing merely the opinion of the doctor and not the data on which the same is based cannot be acted upon.
Ext. P-5 therefore, is unacceptable. Moreover, the certificate has not been further implemented by the testimony of the analyst, There is also no sufficient evidence to show that M. Os. 2 and 3 are of foreign origin. The conclusion that the gold in question is foreign gold is sought to be drawn from the markings on them. In M.O. 2 the marking found was 'Johnson Mathay 9.99.0 London' and in M, 0. 3 the marking found was 'George VDB Britt OMV. RY. F.D.I. ND IMP 1911'. I do not think these markings would lead us to the correct conclusion as to the foreign origin of the article. A Division Bench of the Guiarat High Court made the following observation in Asst. Collector Customs. Baroda v. M. Ibrahim Piriada. (1970 Cri LJ 1305 at p. 1307)(Guj) which is pertinent in this connection. The Court observed;
Mr. Mehta in this connection vehemently relied on the fact that the gold in question had marks of foreign origin. It is well settled that mere markings could not be taken as proof of the fact of the foreign origin of the goods as such marking and labels would be hearsay evidence. In Comptroller of Customs v. Western Electric Co. Ltd., 1966 AC 367, their Lordships of the Privy Council in terms held at p. 369 that such marking must be excluded from consideration as being no more than hearsay.
It would therefore, be unwise from the markings alone to be drawn to the conclusion that the article is of foreign origin. It is also incumbent on the prosecution to fasten the accused with the necessary knowledge as contemplated in Section 135 of the Act to hold him guilty of the offence. The section deals with penal action against the accused over and above the confiscation of the goods, and other steps provided in the Act. Section 135 provides that for the imposition of the penalty it must be shown that the accused was knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or had acquired possession of or in any way concerned in carrying, removing, depositing or purchasing etc., of goods which he knew or had reason to believe, are liable to confiscation under Section 111. In other words, the prosecution must show that the accused was in conscious possession of the goods i.e., to say. he was in possession of the articles knowing their nature and being alive to the consequences of possessing them.
8. In Central Excise Supdt. v Armugam. AIR 1967 Mys 175 at P. 177 the Mysore High Court in dealing with the question would observe:
The words used in Section 178-A of the Sea Customs Act are similar to Section 123 of the Customs Act of 1962. Their Lordships have pointed out that in spite of the presumption under Section 178-A the prosecution had still to prove by further evidence that the accused had mens rea necessary to constitute the offence. In spite of the fact that burden to prove that the goods were not smuggled was on the accused it is the duty of the prosecution to prove that the accused was carrying gold knowingly to evade the prohibition which the law imposed.
9. Some reliance was placed by the prosecution on Ext, P-3 also for fastening the guilt on the accused. Ext. P-3 is the statement of the accused recorded just after the seizure; the time shown in Ext. P-3 is 5 p, m.; but the last seizure was at 6 p. m. From this it is possible to argue that the statement was recorded from the Customs Office where the accused was later on taken. Whatever that might be, I do not think it correct to call Ext. P-3 a confession because it does not contain an admission of guilt. In Ext. P-3 we see only the explanation of the accused as to how the gold happened to come to his hands. No doubt, it could be said that Ext. P-3 would help to show that he was in possession of the articles. But, for this it must be shown that it was a voluntary statement and that the entire statement is true. The statement was given to the Customs Officer and it could be gathered from the concluding sentence in the statement wherein the accused implores them that he might be spared at least Rs. 250/- which he was keeping for his household expenses, that it was on the strength of their promise to leave that amount untouched that the entire statement was given by him. Any way, the statement having been retracted by him, it cannot be accepted for any purpose without corroboration. For proving possession, therefore, independent evidence has to be sought. Exclusive possession of the accused of the premises has not been proved. The accused even according to the prosecution, is in possession as a tenant. The owner has not been examined to show that the accused is his tenant, and that he is in possession of both the buildings. Nos. XVI/644 and 645. M. Os. 2 and 3 were recovered from Door No. XVI/644 which is the refinery. It is stated that these articles were kept in a tin concealed in a hole inside the chimney which was plugged with a loose brick. Being a refinery, the place is accessible to all and sundry.
Where illicit opium was recovered from a motor garage belonging to the accused, it was held that even assuming that the accused used to keep his car in the garage and the same was in his possession, still it was incumbent upon the prosecution to establish that the accused was in conscious possession of the opium in question. A conviction cannot be entered in the absence of evidence to establish a connection between the accused on the one side, and the opium, on the other.
(State of Himachal Pradesh v. Buti Nath. .
Neither P. W. 1 nor P. W. 4 had any personal knowledge about the possession of the building. Possession could easily have been proved by the examination of independent witnesses from the neighbourhood. The fact is not denied that the scene is one of the busiest parts of Broadway, and on either side there are shops in close array. But none of the adjoining shopkeepers has been examined. The one and the only person examined to prove seizure and possession is P. W. 2, a person hailing from Eloor, about 10 miles from the place. Under similar circumstances a Full Bench of this Court had occasion to make the following observations :
Now coming to the merits of the case, the evidence of P. Ws. 2 and 3 only show that wash and other materials used for the manufacture of liquor were recovered from the house K. P. 4-348 Uriyarikunnu Thekkekara in Karumkulam desom. Both P. W.s. 2 and 3 have no personal knowledge that this particular house belongs to or is in the exclusive possession of the accused. No independent witnesses were examined to prove possession. The prosecution could have easily examined some neighbours or the village officer to prove that the house is in occupation of the accused. Especially when P. W. 4 turned hostile and refused to support the prosecution it was the duty of the prosecution to have taken steps to secure the attendance of the President of the Panchayat and not to give him up. It goes without saying that unless the particular house in question is shown to be in the occupation and control of the accused, the mere facturn of recovery of the incriminating articles from that house could not fasten criminal liability on the accused. (Velayudhan v. State, : AIR1961Ker8 (FB).
10. The Supreme Court in Ghu-ran Yaday v. State of Bihar, : 1971CriLJ1197 has observed in a case where the appellant was charged with an offence under Section 47 (a) of the Excise Act wherein six bags of Gan.ia was found in the house said to belong to the appellant.
The evidence of witness relied by the courts below is of little assistance on the question of ownership of the house searched as he has no personal knowledge and the names of the persons or whose information he depends for his testimony have not been disclosed. There is absence of evidence on the ownership of the house. It is clear that there is no legal evidence on the record to show that it was the appellant's house which was searched.
11. The position thus is that evidence is neither sufficient nor conclusive to show that the articles were recovered from the possession of the accused; in other words, the accused was in exclusive possession of the building where the articles were recovered.
12. The search was also illegal, in that it was made by a person not authorised under Section 105 of the Customs Act. Under the section, the Assistant Collector of Customs is given the power to authorise any officer of Customs to search when he has reason to believe that goods liable to confiscation are secreted in a particular place. He may himself search, or may authorise an officer of Customs to search. In the present case, the person authorised by the Assistant Collector was P. W. 4. but the search was conducted and M. Os. 2 and 3 recovered by P. W. 1 who had no authorisation. This is illegal. P. W. 4 would try to legalise the search, saying that he had given oral instructions to P. W. 1 to search. There is no provision in the Act allowing such delegation of duty. The search is therefore, one not in accordance with the Sea Customs Act. The search is vitiated by another circumstance also. Section 103(2) provides that in making searches under the Act the Code of Criminal Procedure relating to searches shall, so far as may be, apply. Section 103 of the Criminal P.C. directs that the search shall be made in the presence of two or more respectable inhabitants of the locality, and the search list should be attested by such witnesses. Of the two attestors to the search list, one has been proved to be a fictitious person. The other witness was examined as P. W. 2, Admittedly, he is not an inhabitant of the locality. He belongs to Eloor, about 10 miles from the place. There are intrinsic indications in his evidence to show that he was not anywhere there at the time of the search. The case of P, Ws. 1 and 4 is that the money (some cash was recovered from door No. XVI/ 645) was taken from the drawer of an iron safe, but P. W. 2 would swear that It was taken from an almirah. It has also come out from the evidence of P. Ws. 1 and 4 that at the time the money was recovered, P. W. 2 was not present. It was the other witness who was then present. Again, according to P. W. 2, three or four ladies were present in the house. But the case of P. Ws. 1 and 4 is that at the time of the search there was only one lady present in the house. There are two buildings with two Corporation numbers, according to the prosecution. But according to P. W. 2, there is only one building. From these materials the conclusion is inescapable that P. W. 2 is a person brought up for the occasion. The refinery, and the residential building are two structures with a courtyard in between. The statement of P. Ws. 1 and 4 that the two structures are in fact, one compact building, cannot be accepted. My conclusion, therefore, is that the requirements of Sections 123 and 105 of the Customs Act have not been complied with in the present case, and that the entire proceedings should be held to be vitiated by the non-compliance of the mandatory provisions of the Act. Conviction cannot be entered on mere suspicion, nor on the conscience of the court being morally satisfied about the complicity of the accused. He can be convicted, and sentenced only if the prosecution proves its case beyond all reasonable doubt.
13. The order of acquittal entered by the learned appellate Magistrate in the circumstances, is correct, and in confirmation of it, this appeal is dismissed.