J.B. Mehta, J.
1. The plaintiff Assistant Collector, Customs, Baroda, and the State of Gujarat have filed this appeal against the acquittal of the original accused No. 1 for the offence under Section 185(b)(ii) of the Customs Act, 1962. The case of the prosecution was, that on September 28, 1968, at about 8.15 A.M. accused No. 1, Mukbul Husain alighted at Baroda from the Janta Express train coming from Bombay. While he was passing through the third class passengers' Exit gate, police constable Navalsing stopped him at the gate as the accused was not able to give satisfactory answers when he was found carrying a hand bag. The accused was detained and the police constable Jivamiya was called. The hand-bag of the accused was searched and 50 bars of gold each weighing 10 Tolas, worth about Rs. 70,000/- were found from the accused's (theli) bag inside the hand-bag. The gold bars are alleged to have foreign markings 'N. M. ROTHSCHILD & SONS 10 Tolas, 999-00'. ' Panchanama Ex. 12 was made of the seizure of the gold. The Police-station Officer Dayashanker arrested the accused under Section 54 (4), Criminal P.C. Thereafter, the Circle Police Inspector Rathod informed the Customs Authorities and handed over the accused, muddamal articles for which the receipt Ex. 14 was issued and the panchanama papers to the Deputy Superintendent of Central Excise Mr. Dixit. Mr. Dixit made a fresh panchanama, Ex. 16 of the seizure of these goods. After a sanction was obtained the Assistant Collector Customs, filed a complaint against the present accused and two other persons, one Mohmad Safi, who was alleged to have purchased the gold with money and sent through the accused No. 1 by one Ismail Haji accused No. 3 to whom ultimately this gold was to be delivered. All the accused were put up for trial for the charge under Section 185 of the Customs Act, 1962, hereinafter referred to as 'the Act' for possessing, acquiring and dealing with the prohibited gold of foreign marks which was liable to be confiscated under Section 111 of the Act. The plea of the accused was of complete denial. Accused No. 1 stated that Safi met him in Bombay and handed over to him the bag to be delivered to his brother Gulam at Baroda. He did not know the contents and put the same in his hand bag. The learned Magistrate acquitted the other two accused. The learned Magistrate held that so far as accused No. 1 was concerned, in view of the seizure of the goods by the Customs Officers, presumption under Section 128 was attracted and the burden was on the accused to show that the gold was not smuggled gold. The learned Magistrate, therefore, convicted the accused No. 1 for the offence under Section 185 (b) (ii) of the Act and sentenced him to suffer E. I. for three months and a fine of Rs. 1,003, in default, rigorous imprisonment for four months. In appeal, the learned Sessions Judge has acquitted the accused on the ground that as the goods were seized by the Police, the presumption under Section 128 was not attracted. The prosecution having failed to prove the gold in question to be smuggled gold, the accused No. 1 also was acquitted. Against the said order the present appeal is filed.
2. On the facts in the present case there can be no dispute that the gold in question was seized by the Police authorities from the accused No. 1 on 28.9-1988 as per panchanama Ex. 12 and the receipt was passed at Ex. 14 in that connection. Mr. Mehta, the learned Assistant Government Pleader vehemently argued that the panch witness has deposed that at the time of the panchanama Ex. 16 made by the Customs authorities the goods were seized from the accused No. 1. There is no substance in this contention. The panch witness Navinchandra Thakkar can hardly be believed in this connection. The Police Inspector Mr. Rathod had in terms deposed that when Mr. Dixit the Customs officer came to him, he made over the muddamal articles, papers and accused to him as per the Yadi Ex. 15 which in terms recites this fact. Mr. Dixit in terms deposes that on September 28, 1968, the muddamal articles seized by the Railway Police had been handed over to him as per Yadi Ex. 15 He took the custody of these articles, accused and the police papers and took them to the Customs Preventive Office before even he drew the panchanama Ex. 16. It is therefore, clear that the panchanama Ex. 16 is not of the seizure of the goods from the accused but it is only a paper panchanama of the delivery of the goods. It is only a paper panchanama which would show that the goods which were seized by the police ' authorities were kept in the custody of the Customs' authorities. Therefore, the goods having not been seized by the Customs authorities from the possession of the accused, the presumption under Section 128 would not be attracted in this case.
3. Section 128(1) in terms provide that where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled gold shall be on the person from whose possession the goods were seized. (2) This section shall apply to gold...and any other class of goods which the Central Government may by notification in the Official Gazette specify. Therefore, presumption in case of gold can arise under Section 128 (1) and (2) provided gold is seized under the Act by the Customs authorities, from the possession of the accused. In the present case gold was seized not by the Customs authorities under the Act but by the Police authorities under the provisions of Criminal Procedure Code after the accused No. 1 was arrested under Section 54(4) under the panchanama Ex, 12, Therefore, the seizure was not under the Act but de hors the Act, when it was done by the police authorities. The accused having lost possession of these goods by this act of seizure by the police authorities, there was no question of the seizure of the same goods when their custody was transferred to the Customs authorities by the Police authorities. Merely making of a fresh panchanama Ex. 16 would not amount to a seizure of the goods under the Act from the possession of the accused BO as to throw the burden on the accused to prove that the gold in question was not smuggled gold. The position of law in this connection is well settled after the decision of the Supreme Court in Gian Chand v. State of Punjab : 1983(13)ELT1365(SC) , where their Lordships of the Supreme Court interpreted an identical, corresponding provision in Section ] 78-A of the Sea Customs Act, 1878. At page 489, their Lordships of the Supreme Court observed that the last part of Sub-section (1) of Section 178-A lays the burden of proving that the goods are not smuggled on 'the person from whose possession the goods are taken.' Assuredly when the goods are delivered to the Customs authorities by the Magistrate, they are not taken from the possession of the persons accused in criminal case so as to throw the burden of proof on them and it would lead to an absurdity to hold that the section contemplated 'proof to the contrary' by the Magistrate under whose orders the delivery was effected, Their Lordships further pointed out that when the goods were seized by the police, they ceased to be in the possession of the accused and passed into the possession of the police, and when they were with the Magistrate it was unnecessary to consider whether the Magistrate had possession or merely custody of the goods. Because the seizure under the authority of law involves a deprivation of possession and not merely custody and so when the police officer seized the goods, the accused lost possession which thereafter vested in the police. When that possession was transferred by virtue of the provisions contained in Section 180 to the Customs authorities, there was no fresh seizure under the Customs Act. This decision furnishes a complete answer to the present question that in order to attract the presumption under Section 123, the goods must be shown to have -been seized under the Act from the possession of the accused by the Customs authorities. If the goods were originally seized by the Police authorities from the possession of the accused, the accused lost possession by seizure under the provisions of the Criminal Procedure Code and, thereafter; the possession vested in the Police authorities. If thereafter the customs authorities got the custody of these goods they could not be said to have seized under the Act so as to throw the burden on the accused to prove that the gold in question was not smuggled gold. Mr, Mehta vehemently argued that the decision of the Supreme Court was in connection with Section 180 of the Sea Customs Act. There is no substance in that contention as the decision is clearly based on the wording of the identical Section 178A, The decision in terms lays down that the burden would be thrown on the accused only when the goods are seized under the Act from the possession of the accused. If the possession of the accused is lost by the seizure of the goods by the Police authorities, the presumption under Section 128 would not arise. Mr. Mehta next relied upon the decision of the Maharashtra High Court in Vasantlal v. Union of India AIR 1967 Bom 188, by the Division Bench consisting of Chainani C. J. and Kotwal J. That decision cannot help Mr. Mehta for the simple reason that in that case the goods were wrongfully seized by the Officer of the Enforcement Department who was not competent to do so and, therefore, it was held that when they were first lawfully seized by the Customs authorities, it was a case of seizure under the Act and it was on that ground that the decision in Gian Chands' case AIR 1932 SC 496 was not distinguished. That decision does not help Mr. Mehta for the simple reason that in the present case the Police Office was entitled to seize the goods under the provisions of the Criminal Procedure Code, when the accused was arrested under Section 54(4). Mr. Mehta also relied upon the decision of Mukherji J. in Deputy Supdt., Customs v. Sitaram : AIR1968Cal274 . That is a : case where the goods which were in the custody of the Magistrate were ordered to be delivered to the Customs authorities. That decision can never help Mr. Mehta for contending that the goods which had been seized by the Police authorities and by which the accused losts possession could be said to have been again seized from the accused under the Act so as to throw the burden of proof under Section 123(1). Therefore, the learned Sessions Judge was. right in holding that in this cage the presumption under Section 128(1) could riot help the prosecution and the prosecution must prove the essential ingredient of the offence by proving that the gold in question was smuggled gold.
4. 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. 869 that such marking must be excluded from consideration, as being no more than hearsay. When the question arose as to the country of origin of the goods. Mr. Mehta next argued that the reports Exs. 20 and 21 from the Mint Master proved that the fineness of gold to the extent of 998,8 was such that the gold must be of foreign origin. The Mint Master has not been examined in this case and Mr. Mehta has not pointed out any provision which would make the report of the Mint Master the evidence of this fact. The evidence of the Goldsmith can hardly help this prosecution. In fact, Mr. Dixit himself admitted that even after the prohibition was issued for import of gold of the type seized, on permit of Reserve Bank, Government or any private party could imprint gold with such marks. Therefore, there is no iota of evidence in the present case to prove that the gold in question was smuggled gold. The mere fact that the accused was in possession of this gold and such possession was a conscious possession because of the various circumstances mentioned by the learned Magistrate would not prove the essential ingredient of the offence that the gold in question was smuggled gold. The learned Sessions Judge was right in acquitting the accused on that ground as the charge was not brought home to the accused No. 1. ,
5. In the result this appeals fails and is dismissed.