M.A. Sattar Sayeed, J.
1. This petition coming on for hearing on Friday the 27th day of June 1980 and this day upon perusing the petition, and the Judgment of the Lower Courts, and the record in the case, and upon hearing the arguments of Mr. K A. Panchapakesan advocate for the petitioner, and of Mr. Elias Ali the Central Government Prosecutor on behalf of the respondent the court made the following order:
1. The petitioner who was convicted and sentenced under Section 135(1)(b)(ii) of the Customs Act, 1962, by the Courts below has filed the above criminal revision.
2. It appears from the facts of the case that on 23-4-74 at about 10.30 a.m. P.W. 1 one of the preventive officers, along with other officers were keeping a watch over Messrs. Deluxe Roadlines, situate at No. 107, Govindappa Naicken Street, Madras-1. P.W. 1 noticing the petitioner coming to the godown at 10.30 a.m. on the aforesaid day and taking delivery of eight wooden cases from Messrs. Deluxe Roadlines, intercepted the petitioner and seized all the eight cases under Ex. P. 1, M. Os. 1 to 5 were wooden cases. P.W. 1, and other officers seized the said M. Os. On examination of M. Os. 1 to 5, they were found to contain M. Os. 7 to 12 series which are foreign time pieces, cutlery, glassware, assorted crockery, toilet soaps, imitation jewelleries, confectionary etc. As far as M.O. 6 parcel was concerned, it was found to contain 11 reels of blue film. All these ware seized under Ex. P. 1, P.W. 2, another Customs Officer, helped in preparing the mahazar. The value of the goods seized, excepting M.O. 13, series was Rs. 8000/- and odd on the date of the seizure. The petitioner herein gave voluntary statement in his own hand in English under Ex. P. 4 which was attested by P.W. 1 That apart, the customs officers also recorded a statement from the Manager of Messrs. Deluxe Roadlines, who has been examined as P.W. 4, and this statement is marked as Ex. P. 5. It was found that the consignments seized were despatched from Bombay in the name of various firms such as Dimple Traders, Bombay, Jankidas Jairamdas, Choksy Bors., R K. Dssai etc.
3. Adjudication proceedings were instituted and, at the request of the petitioner, service of show-cause notice was waived and a personal hearing was given to him by the Collector of Customs. Ex. P. 12 is the copy of the order of adjudication. The seized goods were confiscated and a penalty of Rs. 2000/- was imposed upon the petitioner. Thereafter, after obtaining necessary sanction, a case was instituted in the criminal court against which this revision arises.
4. It may be stated that the petitioner is a partner of Messrs. Shah Bhoormal & Co., Madras, and that he took the delivery of the boxes under six consignment notes, but, however, he denied that he took delivery of the parcel containing blue film. So far as the cases are concerned he has admitted to have taken delivery but his contention was that they were not smuggled goods and that he has not dealt with smuggled goods. Evidence was let in to show that the goods seized by the customs authorities were smuggled goods for which the petitioner is liable to be charged and convicted under Section 135(I)(b)(ii) of the Customs Act, 1962. The trial court on the evidence adduced by the prosecution, came to the conclusion that the goods seized by the customs officers from the custody of the petitioner are smuggled goods and, therefore petitioner was guilty under the aforesaid section and was convicted and sentenced to imprisonment till the rising of court and also to pay a fine of Rs. 500/- in default to suffer rigorous imprisonment for one month. Aggrieved by the conviction and sentence of the trial court, the petitioner preferred C.A. No. 537. of 1977 before the VI Additional Sessions Judge, Madras. The learned Sessions Judge, after reviewing the entire evidence adduced in the case, came to the conclusion that there is nothing for him to interfere with the conviction and sentence imposed by the trial court on the petitioner, and, therefore, dismissed the appeal, thereby confirming the conviction and sentence imposed on the petitioner. It is against this dismissal of the appeal, the above criminal revision has been filed.
5. Learned Counsel for the petitioner, Mr. K.A. Panchapagesan, contends that the evidence adduced on behalf of the prosecution clearly show that M.Os. 7 to 12 series are the items not notified under the Customs Act, and, therefore in the absence of any further proof or any material contravening the Custom Regulations, the Courts below have erred in coming to the conclusion that the goods seized are smuggled goods. The learned Counsel, further, contends that the prosecution, without proving that the goods seized are smuggled goods, cannot throw the burden or blame on the petitioner on the ground that the goods are smuggled goods. The learned Counsel, further contends that only in cases of notified goods under Section 123 of the Customs Act, the Department can call upon the petitioner to prove that they are not smuggled goods. But, in a case of this kind, when P.W. 1 has himself deposed that, the goods do not come under the notified items, it can be said that the conviction and sentence of the petitioner is erroneous and contrary to law.
6. Let us now consider the argument advanced by the counsel appearing for the petitioner. No doubt, P.W. 1 admits that M.Os. 7 to 12 series are items not notified in the Customs Act as required under Section 123 of the Act. It may also be stated that Section 123(?) casts a burden on the prosecution to prove that the articles seized are smuggled goods. I am of the view that in such cases the conduct of the petitioner must also be taken into consideration. The goods were seized from Messrs. Deluxe Roadlines. When the goods were seized, the petitioner has admitted that they were all of foreign origin. Even though the goods were not notified goods, the evidence of P.W. 1 is to the effect that it is for the petitioner to establish beyond doubt that they are not smuggled goods which came to his possession. The burden to prove in a case of this kind is, not on the prosecution but on the petitioner to show as to how he got these goods. The petitioner, first of all, has requested the Collector of Customs that no show-case notice need be given to him. The goods ware sent and the consignment notes were addressed to Messrs. Shah Bhormal & Co. by an unknown person. Further, the goods that were seized were foreign time pieces, cutlery, glassware, assorted crockery, toilet soaps, imitation jewelleries, confectionery etc. It is not denied even by the petitioner's counsel that these goods were not of foreign origin. When such foreign goods are imported into a country, duty is levied. But. in this case, the contention of the learned Counsel for the petitioner is that they are all goods sent by a broker from Bombay, but, the petitioner is not able to convince the department as to who is the broker and what is his address at Bombay. If, really the petitioner has purchased the goods from a broker, nothing prevented him to give the address of the broker to the Department. That apart, even vouchers were not produced for the purchase of goods. In such circumstances, as the goods are foreign ones, the burden shifts on the petitioner to prove as to how he got the goods. Certainly, the authorities are entitled to reject the unproved plea of the petitioner that the goods have been acquired by the petitioner through the normal trade channels in open market. It the petitioner has obtained goods from a broker, nothing prevented him to prove to the Customs authorities about the address of the broker and the vouchers for the payment made by the broker or by the parties concerned for obtaining these goods.
The real basis for action appears to be the suspicion that the petitioner traded in smuggled goods, which has led to the search. Even the names on the cases, to whom the goods were despatched to the petitioner has not proved the purchase of these articles, as stated by me, by giving the broker's address.
7. With reference to the second contention of the counsel for the petitioner, that the goods are not notified ones as required under Section 123 of the Act, and that, therefore, the confiscation of the goods is contrary to law, appears to be unsound and unsustainable. The petitioner has stated that he has purchased them from one Chiman Bhai, a broker, but the petitioner is not able to furnish his whereabouts. The Department has found that the parcel addresses were of the fictitious names. The entire transaction is shrouded with mystery. When these factors are taken into consideration, it leads one to the conclusion that M.Os. 7 to 12 series have been illicitly imported into India and, that apart, the conduct of the accused clearly shows an indication about his consciousness of the smuggled goods.
8. The learned Counsel appearing for the department contends that the petitioner was not prevented in any way from giving a reasonable explanation as to how and from where he acquired the goods. If the petitioner had given the particulars and address of the broker, the entire matter would have been solved by the Department itself and the Department would have enquired the broker as to how the broker got the goods seized. It is pointed out in Collector, Customs v. D. Bhoormull 1974 S.C. page 859 by the Supreme Court as under:
Since it is exceedingly difficult, if not absolutely impossible, for the prosecution to prove facts which are especially within the knowledge of the opponent or the accused, it is not obliged to prove them as part of its primary burden.
On the principle underlying Section 106, Evidence Act, the burden to establish those facts is cast on the person concerned ; and if he fails to establish or explain those facts, an adverse inference of facts may arise against him, which coupled with the presumptive evidence adduced by the prosecution or the Department would rebut the initial presumption of innocence in favour of that person, and in the result prove him guilty. However, this does not mean that the special or peculiar knowledge of the person proceeded against will relieve the prosecution or the Department altogether of the burden of producing some evidence in respect of that fact in issue. It will only alleviate that burden to discharge which very slight evidence may suffice.
9. Keeping these principles in view, I am of the view that the Courts below have rightly convicted and sentenced the petitioner under the aforesaid section. The petitioner received the parcels in his firm's name at Madras from Bombay in the name of different concerns such as 'Dimple Traders, Bombay'. Jankidas Jairamdas, Choksy Bros., R.K. Desai etc. but, the investigation done by the Department revealed that they are all fictitious names. The petitioner had knowledge of all the consignments sent and all that he says in Ex. B, 4., which is the statment given by him to the Customs Officer, is that he purchased these goods from a broker by name Chiman Bhai and the petitioner is unable to give even that broker's address. 'The totality of the circumstances, when taken into consideration, leads to the conclusion that M.Os, 7 to 12 series have been illegally and illicity transported into India and the conduct of the petitioner clearly indicates his consciousness of smuggled character of the goods'. I have heard the arguments of the learned Counsel for the petitioner and the Department and have gone through the judgments of the courts below. I find there is no illegality or any irregularity in the conviction and sentence imposed on the petitioner. In these circumstances, this criminal revision case is dismissed.