AMBA LAL versus THE UNION OF INDIA AND OTHERS

1 S.C.R. SUPREME COURT REPORTS

'9[[60 ]]

has to declare only an intention and th&t if ultim&te-'9[[60 ]]ly the actual despatch is made by some person who is B. K. Wadeyar not registered dealer, it cannot strictly be said that v. the declaration has not been carried out. It,. might M/s. Daulatra'ln very well be that if at the time decl11.ration of inten-inten-Rameshwarl~l tion is made in the certificate the purchasing dealer had the intention as stated and ultimately he sells to Das Gupta f. person who is not registered dealer for despatch of the goods ou1'side the State of Bombay, the purchas-ing dealer may not be liable for having made "false declaration". Even though he has not made false declaration of his intention, the fact remains that the intention declared has not been carried out. The scheme of the Legislature clearly is that where the intention as declared has not been carried out pur-chase tax should be levied. To hold otherwise would be to make the declaration of the intention useless.

said that v. It,. might M/s. Daulatra'ln of inten-inten-Rameshwarl~l Das Gupta f.

Our conclusion therefore is that the courts below have rightly interpreted the words "a person" in s. lO(b) of the Bombay Sales Tax Act as a" registered dealer" and that the purchasing dealers have rightly been as8essed to purchase tax under s. lO(b).

In the result, both the appeals are dismissed with costs.

Appeals dismissed.

AMBA LAL

THE UNION OF INDIA AND OTHERS.

(B. P. SINHA, c. J., J. L. KAPUR,

October 3.

P. B. GAJENDRAGADKAR, K. SuBBA RAo and

K. N. WANCHOO, JJ.)

Evidence-Customs authorities recovering articles suspected to have been smuggled-Accused pleading articles brought from Pakistan at time of partition-Burden of proof-Imports Exports Control

Act, I947 (IO of z947), s. 3-Sea Customs Act, z878 (8 of z878), ss. z9, z67(8) and z78-A-Land Customs Act, z924 (Ig of z924), ss. 5 and 7-Indian Evidence Act, z872 (r of r872), s. ro6.

v. v.·he U11irJ11 "f India ~'..;.. .Otlu:r_{

T'1e appellants house was searched on June 22, 1951, by the (us toms authorities and ttn articles v.·ere recovered therefrom. Jn the inquiry before the Collector the appellant stated that the lirst five articles had been brought by him in 1947 from Pakistan after partition and that with respect 10 thr othrr fi\·earticles he was bona fide purchaser tllt'reof. The CQIJector held that the appellant had failed to establish his case and held that the goods were imported into India in contravention of s. 3, Import Export Control Act read with ss. 19 and 167(8). Sea Customs Act ancl ss. 4 and 5 Land Customs Act read with s. 7 thereof. This decision was upheld on appral by the Central Board of RC\·enue and by the Central Government on revision. The appellant con-tended that: (1) the onus of proving that the first five articles were smuggled goods was on the department which it hacl fai!ecl to discharge, anti (2) C\·en if the other five articles which he purchased were smuggled goods he was not concerned with their importation.

Held, that the onus was on the authorities to establish that the fust five articles were imported into India after ~larch 1948, when the customs barrier was put up for the first time between India and Pakistan, and that the authorities having !ailed to adduce any evidence to prove this fact the appellant coulrl not be held guilty of any of the offences charged. The onus did not shift by virtue of s. i 78A, Sea Customs Act or s. 5, Land Customs Act, as the former section was not in operation at the relevant time and the latter section was not applicable to the facts of this case; nor did the onus shift by virtue of s. ro6, Evidence Act, as that section could not be used to undermine the well established rule that the burden was on the prosecution arid never shifted.

· Shamb11 Nath Mehra v. The Stale of Ajm<r, [1956] S.C.R. 199, followed.

With respect t.o the other five articles e\·en if the appellant was right in his contention that he was not roncernecl in their importation he was liable to the penalty under s. 7(1)(c). Land Customs. Act, 1924, for keeping the articles knowing them to he smuggled goods.

CIVIL APPELLATE JURISDICTIO!':: Civil Appeal No. 153 of 1956.

Appeal from tho judgm<'nt and order .. tcd Novem-ber 3, 1954, of the Punjab ,High Court in Civil Writ ~o. 253.D of 1954.

Veda Vyasa, S. K. Kapur,/(, K.Jain.and Gan.pat Rai, for the appellant.

H. N. Sanyal, Addition.al Solicitor.General of India,

H. R. Khanna a.n<l T. M. Sen, for the reHpondent~.

19GO. October 3. The Judgment of the Court was deli vcred by

SuBBA RAO J.-'l'his appeal by certificate is 1lirect. ed against the order of the High Court of J udica tu re of the State of Punjab dismissing the petition filed by the appellant under Art. 226 of the Constifution.

The facts giving rise to this appeal may be briefly stated. The appellant is at present resident of llarmer in the State of Rajasthan. But before 1947 he was living in place which is now in Pakistan. On June 22, 1951, the Deputy Superintendent, Land Customs Station, Barmer, oondur:ted search uf the appcllant'8 house and recovered therefrom the follow-ing ten articles :

On July 14, 1951 the Assistant Collector, Ajmer, gave notice tu the appellant to show. cause and explain why the goods seized from him should not be confis-cated under s. 167(8) of the Sea Customs Act and s. 7 of the Land Customs Act. The appellant in his reply

A111ba Lal v.

The Uitioit of India & Otfters Subba Rao J.

Amba Lal v. Tlrt Union of /Hdia 6· Others Subba Rao j.

stated that items l to 5 supra wero brought by him from Pakistan after the partition of the country in 1947 and that items 6 to 10 were purchased by him bona fide for vs1ue in Barmer. On October 27, 1951, the appellant appeared before the Collector of Central Excise, who made an enquiry, and admitted before him that items 6 to IO were smuggled goods from Pakistan, but in regard to the other items be reitera-ted his plea that he originally brought them from Pakistan in the year 1947. The> Collector of Central Excise .held that the appellant had failed to establish that items l to 5 bad been brought by him to India in the year 1947 and be also did not accept the plea of the appellant in regard to items 6 to IO that he was bona fide purchaser of them. I u the result he held that all the goods were imported into India in contravention of, (i) s. 3 of the Import Export Control Act read with ss. 19 and 167(8) of the Sea. CuAtoms Act, (ii) ss. 4 a.nd 5 of the Land Customs Act read with s. 7 thereof. He made au order of confiscation of the said articles under s. 167(8) of the Sea CustomA Act and s. 7 of the Land Customs Act; but under s. 183 of the Sea Customs Act he gave him an option to redeem the confiscated goods within four months of the date of the order on payment of sum of Rs. 25,000. In addition ho imposed pe11a.lty of Rs. l,000 a.nd directed the payment of import duty leviable on a.II the items together with other charges before the goods were taken out of custom" control. Aggrieved by the said order, the appellant preferred an appeal to the Central Boa.rd of Reveuue. The Centre.I Board of Revenue agreed with the Collector of Central Excise that the onus of proving the import of the goods in question was on the appellant. In regard to items I to 5, it rejected the plea of the appellant mainly on the ha.sis of statemrnt. allPged to have been me.de by him at the time of seizure of the said articles. In the result the t\ppeal was dis-missed. The revision filed by the appellant to the Central Government was also dismissed on August 28, 1953. Thereafter the appellant filed writ petition under Art. 226 of the Constituticn in the High Court

of Punjab but it was dismissed by division bench of the High Court on November 3, 1954. Hence this appeal.

It would be convenient to deal with this appeal in two parts-one in regard to items 1 to 5 and the other in regard to items 6 to 10.

The decision in regard to items 1 to 5 turns purely on the question of onus. The Collector of Central Excise as well as the Central Board of Revenue held that the onus of proving the import of the goods lay on the appellant. There is no evidence adduced by the customs authorities to establish the offrnce of the appellant, namely, that the goods were smuggled into India after the raising of the customs barrier against Pakistan in March 1948. So too, on the part of the appellant, except his statement made at the time of seizme of the goods and also at the time of the inquiry that he brought them with him into India in 1947, no other acceptable evidence has been adduced. In the circumstances, the question of onus of proof becomes very important and the decision turns upon the question on whom the bmden of proof lies.

This Court has held that customs officer is not judicial tribunal and that proceeding before him is not proseeution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Gus toms Act are penal in character. The ~ppro­priate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on 1 he person concerned; see ss. 168 and l 71A of the Sea Customs Act and ss. 5 and 7 of the Land Customs Act. To such a, situation, though the provisions of tbe Cude of Ctiminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorit.h.'s and they have to

A111ba Lal v.

The Union of India & Otl~e'' Subba Rao J.

bring liome the guilt to tho person alleged to have c.ommitted particular·offence under the said Acts by adducing srtisfactory evidence. I1\ t.he present case no siwh evidence is forthcoming; indeed there is no tjttle of evidence to prove the case bf. .the' customs authorities. But it is said that the onus shifted to ·the appellant for three reasons, namely, (i) by reason of the provisiops of s. l 78A of the Sea Customs Act; (ii) by reasoi:I of s. 5·of the Land Customs Act; aud (iii) by reason of s. 106 of the Evid(lnce Act.

A111ba Lal v. The C.: nion of l11dia & Others Subba Rao ].

Section l 78A of the Sea Customs Act does 11ot govern the present case, for that section was insurted in that Act by Act No. XXI of 1955 ~·hcreas the order of confiscation of the goods in question was made on January 18, IQ52. The section is prospe9tivo in operation and "Cannot govern the said order.

Nor aoes s. 5 of the Land Customs Act apply to the present case. .Under s. 5(1) of the said Act, "Every person desiring to pass any goods ......... by land, out of or into any foreign territory shall apply in writing ...... for pe.rmit for the passage thereof, to , the Land Customs Gfficer iJ1charge of land customs Station .. : ....... " By sub-s. (2) ofs. 5 oft-he said Act, if the requisite duty has been paid or the goods have been found by the Land Customs Officer {o be free of duty, the Land Custo)Us Officer is om powered lo grant a. pe1·mit. Under sub-s. (3) thereof, "Any- La11d Custum8 Officer, duly empowered by the Chief Customs · authority in .this behalf, .aj'a:y require any person in charge of any goods w hfoh slich Ofticcr has reason to believe to J;iave been imported, or to be about to bo exported, by land from, or to, any foreign -territory to produce. the permit granted for such goods; and ·any such goods which are dutiable a.nd which a,re unaccom-panied by permit or do not correspond with the specification containrd in the permit produced, shall be detained and shail be liable to confiscation." This section has no bearing on the question of onus of proof., This ~ection obviously. applies to ciise where permit is required f•>r importing goods by land from foreign onnntry into T ndia and it empowers the Land Cus_toms Officer, \'·bo has-reason to .believe that any

goods have been imported by land from any foreign territory, to demaud the permit and .to verify whe~her the goods so imported correspond with the specifica-tion contained in the permit. If there was no permit, or if the goods did not correspond with the specifica-t.ion cont.ained in the permit, the said goods would be liable to be detained and confiscated. The applica. tion of this section is conditioned by the legal require-ment to obtain permit. If no permit is necessary to import goods into India, the provisions of the section cannot be attracted. In the present case the customs barrier was established only i11 March, 1948, that is, after the said items of goods are stated by the appel-lant to have been brought into India.

Amba La! v. The Union.of India c;,. Others Subbn Rao ].

We cannot also accept the contention that by reason of the provisions of s. 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 194 7. Section 106 of the Evidence Act in terms does not apply to proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of uriiversal application. Under that section, when any faot is especially within the knowledge of any person, the burden of.proving that fact is upon him. This Court in Shambu Nath 1lf ehra v. The State of jmer (' ), after considering the earlier Privy Council decisions on the interpretation of s. 106 of the Evidence Act, observed at p. 204 thus:

"The section cannot be used to undermine the

. well established rule of law that, save in very excep-tional class of case, the burden is on the prosecution and never shifts."

If s. 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked. If so, it follows that the onus to prove the case against the appellant is on the customs authorities and they failed to discharge that burden in respect of items 1 to 5. The order of confiscation relating to items 1 to 5 is set aside.

Before closing this aspect of the case, some observa-tions have to 'be made in respect of the manuer.iu (1) [1956] S.C.R. 199.

Amb:z Lal v. The f'11i:-o;z of lndia 6- Otht.,,

which the statelllent given by the appellant when the goods were seized was u~ed against him by the custoDJs authorities. It \1 ould J,.., seen from tlui ordor of the Collector of .. ntral Exc·ise a~ WC'l11is that. of the Central Board of He,·enuP t ha! they had relied upon tho statement alleged to haro been ·D!ade by him ;it t.he time the search was made in his house in order to reject his case that he brought. somH of the items of goods into India. in the year 1947. The app1>!11rnt. in his reply to the show-cause notice complained that his statement was taken in English, that he did not know what was recorded and that his application for inspec-tion and for the grant of copy of his statement was not granted to him. It does not appear from the records that he was given copy of t!rn statement or that he was allowed to inspect the same. In the circumstanceH we must point out that the customs authorities wero not justified to rely upon certain alkged discrepancies in that statement to rejc•ct the appellant's- subsequent \'ersion. If they wanted to rely upon it they should have given an opportu-nity to the appellant to inspect it and, at any rate, should have supplied him copy thHreof.

Coming to items 6 to IO, we ha.Ye no reason to reject, a• we have been ll.sked to do, the Hta.tement made in the order of the Collector of Central Excise dated Oct.ober 27, 1951, that the appellant accepted that items 6 to 10 were smuggled goods from Pakis-tan. [t would have been better if the customs autho-rities had taken that admission in writing from the appellant, for that would prevent the rotract.ion of the concession on scicond thoughts. That a.part, it is more satisfactory if body entrusted with functions such u.s the customs authoritieH a.re entrusted with takes that precaution when its decision is mainly to depend upon such admission. But in this case, hav-ing r<'gard to the circumst1rnces under, and the manner in, which the said concession was made, wo have no reason t-0 doubt the correctness of the statements of fact. in regard to this matter made in the orders ?f ~he customs authoritif's. If so, it follows that the fmdmg of the customs authorities that the appellant purchas-ed the said items, which were smuggled goods, should

prevail. The order of confiscation of these five items will, therefore, stand.

Even so, it is contended by the learned counsel for the appellant that the customs authorities went wrong in imposing pennlty on him under s. 167(8) of the Sea Customs Act. The said section reH.ds :

"If nny goods, the importation or exportation of which is for the time being prohibited or restricted by or under Clrnpter IV of this Act, be imported into or exported from lndin contrary to such prohibition or restriction ............ such goods shall be liable to con-fiscation; ·and

any person concerned in any such offence shall

be liable to penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees."

The :tppellant's argument is that though he purchas-

ed the said smuggled goods he is not concerned with the importation of the goods contrary to the prohibi-tion or restriction imposed by or under Ch. IV cif the Sea Customs Act. The offence consists in importing the goods contrary to the prohibition and, therefore, the argument proceeds, person, who has purchased them only after they were imported, is not hit by the said sect.ion. There is some force in this argument, but we do not propose to ex press our final view on the matter as the appellant is liable to the pennlty under s. 7(l)(c) of the Land Cuotoms Act, 1924. The said sect.ion reads :

" Section 7 (I) : Any person who-

·································································· (c) aids in so passing or conveying any goods, or, knowing that any goods have been so passed or con-veyed, keeps or conceals such goods or permits or procures them to be kept or concealed,

shall be liable to penalty not exceeding, where the goods are not dutiable, fifty or, where the goods or any of them are <lutiable, one thousand rupees, and any dutiable goods in respect of which the offence has been committed shall be liable to confiscation." In this case toe finding is that the appellant with the

Amba ·Lal

The Union of India & Others Subba Rao J.

Amlia Lal v Th~ i:n10,1 of lndlcl {,- ()1J,,•r.1 Sul,ba Rav .f

knowledgP that the goods bad been smuggled into India kept the guodR, and, therefore, he was liable to penalty under that_ section. We hold that thl' penalty was rightly imposed on him.

[t is then contended that tho Collector of Central Excise had no jurisdiction to impose conditions for the release of the confiscated goods. The Collector of Central Excise in his order says, "In addition the import duty leviable on all these items together with other charges, if any payable, should be paid and necessary formalities gone through before the goods can be pas8cd out of Customs Control ". In Shew-pujanrai lndrasanrai Ltd. v. The Collector of CU8-toms (1), similar question arose for consideration of this Court. Ther~ by an impugned order the Collector of Customs imposed two conditions for the release of the confiscated goods, namely, (I) the production . of permit from the Reserve Bank of India in res-pect of the gold within four months from the date of despatch of the impugned order, and (2) the pay-ment of proper customs duties and other charges leviable in respect of the gold within the same period of four months. This Court held, agreeing with the High Court, that the Collector of Customs had no jurisdiction to impose the said two conditions. The learned Additional Solicitor General concedes that the said decision applies to the present case. We do not, therefore, express any view whether that deci-sion can be distinguished in its application to the facts of the present case. On the basis of the conces-sion we hold that the conditions extracted above, being severable from the rest of the order, should be deleted from the said order of the Collector of Central Excise.

Learned counRd for the appellant then argues the.t

the option given in the sa.id order to the appellant to redeem the confiscated goods for home consumption within four months of the order on payment of f~8 • 25,otlO was based upon the validity of the confis-cation of all the ten items and, as this Court now holds that contisce.tion we.s bad in respect of items. l

(!) [1959] S.C.R. 821.

to 5, the amount of the penalty of Rs. 25,000 should proportionately be reduced. There is justification for this contention. But we cannot reduce the amount, as under s. 183 of the Sea. Customs Act ,the amount has to be fixed by the concerned officer as he thinks fit. But as the basis of the order partially disappears, we give liberty to the appellant to apply to the cus-toms authorities for giving him an option to redeem the confiscated goods on payment of a. lesser amount, having regard to the changed circumstances.

In the result, the appeal is allowed in part and the order of the Collector of Central Excise is accordingly modified in terms of·the finding given by us. As the parties succeeded and failed in part, they are directed to bear their own costs.

Appeal partly allowed.

GANGADHARRAO NARAYANRAO MAJUMDAR

THE STATE OF BOMBAY AND ANOTHER

(WITH CONNECTED APPEALS)

(B. P. SINHA, c. J., J. L. KAPUR,

P. B. GAJENDRAGADKAR, K. SUBBA RAO and

K. N. WANCHOO, JJ.)

Inams-Abolition of Personal Inams-Constitutional validity of Enactment-" Estate·· '"Right in an estate", meaning of-Bom-bay Personal Inams Abolition Act, z952 (Bom. 42 of z953), ss. 4, 5, 7, z7-Bombay Land Revenue Code, 1879 (Bom. 5 of 1879), s. 3(5) -Constitution of India, Arts. 31, 3I-A.

The appellants held personal inams which were governed by Bombay Acts Nos. II and VII of 1863 by virtue of which they held their lands on payment of land revenue . which was less than the full assessment. After the coming into force of the Bombay Personal Inams Abolition Act, 1952, the appellants who were affected by it challenged the validity of the Act on the grounds, inter alia, (1) that the property which had been dealt with under the Act was not an estate.inasmuch as what ss. 4 and 5 exting11ished was the right of the inamdar to appro-priate to himself the difference between the full assessment and

mba Lal v.

'The L[1]11inn o.f India 6- Others Subba Rao ].

'9[60 ]October .1·