SUBBA RAO, J. : -
(1.)THE following Judgment of the court was delivered by
(2.)THIS appeal by certificate is directed against the order of the High court of Judicature of the State of Punjab dismissing the petition filed by the appellant under Art. 226 of the Constitution.
The facts giving rise to this appeal may be briefly stated. The appellant is at present a resident of Barmer in the State of Rajasthan. But before 1947 he was living in a place which is now in Pakistan. On 22/06/1951, the Deputy Superintendent, Land Castoms Station, Barmer, conducted a search of the appellant's house and recovered therefrom the following ten articles :
On 14/07/1951 the Assistant Collector, Ajmer, gave notice' to the appellant to show cause and explain why the goods seized from him should not be confiscated under s. 167(8) of the Sea Customs Act and s. 7 of the Land Customs Act. The appellant in his reply stated that items to 5 supra were brought by him from Pakistan after the partition of the country in 1947 and that items 6 to 10 were purchased by him bonafide for value in Barmer. On 27/10/1951, the appellant appeared before the Collector of central Excise, who made an enquiry, and admitted before him that items 6 to 10 were smuggled goods from Pakistan, but in regard to the other items be reiterated his plea that he originally brought them from Pakistan in the year 1947. The Collector of central Excise held that the appellant bad failed to establish that items 1 to 5 had been brought by him to India in the year 1947 and he also did not accept the plea of the appellant in regard to items 6 to 10 that he was a bonafide purchaser of them. In 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 Customs Act, (ii) ss. 4 and 5 of the Land Customs Act read with s. 7 thereof. He made an order of confiscation of the said articles under s. 167(8) of the Sea Customs 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 a sum of Rs. 25,000.00. In addition he imposed a penalty of Rs. 1,000.00 and directed the payment of import duty leviable on all the items together with other charges before the goods were taken out of customs control. Aggrieved by the said order, the appellant preferred an appeal to the central Board of Revenue. The central 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 1 to 5, it rejected the plea of the appellant mainly on the basis of a statement alleged to have been made by him at the time of seizure of the said articles. In the result the appeal was dismissed. The revision filed by the appellant to the central government was also dismissed on 28/08/1953. Thereafter the appellant filed a writ petition under Art. 226 of the Constitution in the High court of Punjab but it was dismissed by a division bench of the High court on 3/11/1954. 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.
(3.)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 offence 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 seizure 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 burden of proof lies..
This court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a prosecution. But it cannot be denied that this relevant provisions of the Sea Customs Act and the Land Customs Act are penal in character. The appropriate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a 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 the person concerned ; see ss. 168 and 171A of the Sea Customs Act and ss. 5 and 7 of the Land Customs Act. To such a situation, though the provisions of the Code of Criminal 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 authorities and they have to bring home the guilt to the person alleged to have committed a particular offence under the said Acts by adducing satisfactory evidence. In the present case no such evidence is forthcoming; indeed there is no tittle of evidence to prove the case of the customs authorities. But it is said that the onus shifted to the appellant for three reasons, namely, (i) by reason of the provisions of s. 178A of the Sea Customs Act; (ii) by reason of s. 5 of the Land Customs Act; and (iii) by reason of s. 106 of the Evidence Act.