G.C. Mathur, J. - (1.) COMMON questions arise in these two revisions and therefore, they are being disposed of by a common judgment.
(2.) THE Applicants, Shiv Narain and Ram Chandra, were going on a rickshaw on 10 -4 -1964, when they were stopped by Sri G.S. Bakhshi S.S.I., LIU in Budaun. Sri Bakhshi had previous information that the Applicants were carrying contraband gold. On a search being made, five Pansas of gold, a sum of Rs. 12,800/ - were recovered from the possession of Shiv Narain and five Pansas of gold and a sum of Rs. 50/ - were recovered from the possession of Ram Chandra. All the gold Pansas bore the inscriptions "Paris Funders -9990". The Customs authorities at Bareilly were informed on telephone of this seizure and on the next day, i.e., 11 -4 -1964, Sri Har Chand Singh Ahluwalia, Deputy Superintendent, Central Excise and Customs, cams from Bareilly and took possession of the gold pansas. Subsequently, proceedings were held and the gold was confiscated Under Section 111 of the Customs Act, 1962. The confiscation order has become final and I am not concerned with it. The Applicants were tried at two separate trials before a magistrate, first class, Budaun, for offences punishable Under Section 135(b) of the Act for being in possession of and for being concerned in carrying and keeping the Pansas of gold, knowing or having reason to believe that they were liable to confiscation Under Section 111 of the Act. The Applicants denied the recovery of the gold Pansas from their possession. The magistrate held that the five Pansas of gold were recovered was foreign gold and that it had been smuggled into India and convicted the Applicants Under Section 135(b) of the Act. He sentenced Applicant Shiv Narain to two years' R.I. and to a fine of Rs. 1,000/ - and in default of payment of fine, ordered him to undergo simple imprisonment for a further period of six months. He sentenced Applicant Ram Chandra to two years' R.I. Against their convictions and sentences, the Applicants preferred two appeals. The 1st Temporary Civil and Sessions Judge, Budaun, has dismissed both the appeals reducing their sentences from two years to one year's R.I. Hence these two revisions. Learned Counsel for the Applicants has challenged the convictions of Applicants Under Section 135(b) of the Act as illegal. The relevant part of Section 135(b) reads: ...if any person acquires possession of or is, in any way, concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation Under Section 111, he shall be punishable.... It is contended that one of the essential requirements of this provision that the gold pansas were liable to confiscation Under Section 111 has not been established by the prosecution in these two cases. Section 111 enumerates in Clauses (a) to (o) the classes of goods improperly imported which are liable to confiscation. It appears that, at the time of the confiscation proceedings, the case of the Customs authorities was that the gold Pansas were covered by Clause (d) of Section 111, but no attempt was made by the prosecution at the trials to prove that the seized gold Pansas were covered by Clause (b) or by any other clause of Section 111. No provision has been brought to my notice whereunder gold seized and bearing foreign markings is to be deemed liable to confiscation Under Section 111. It was contended by Sri Katju, learned Deputy Government Advocate, that the gold Pansas were smuggled gold and were, therefore, liable to confiscation Under Section 111. For this, reliance was placed upon the provisions of Section 123 and upon the definition of "smuggling" contained in Clause (39) of Section 2. Clause (39) of Section 2 provides: 2(39) - -'smuggling', in relation to any goods, means any act or omission which will render such goods liable to confiscation Under Section 111 or Section 113. Section 111 deals with confiscation of improperly imported goods etc. and Section 113 with confiscation of goods attempted to be improperly exported etc. Goods, which are the subject -matter of "smuggling", are "Smuggled goods". Therefore, if the Act provides that certain goods are to be deemed or presumed to be "smuggled goods", they will be liable to confiscation Under Section 111 (if they were imported goods) or Under Section 113 (if they were attempted to be exported). It was argued that the gold Pansas seized in the two cases should be presumed to be " smuggled goods" in view of the provisions of Section 123(1). This section is in these terms: 123 (1) - -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 goods shall be on the person from whose possession the goods were seized. Three conditions are necessary for the application of Section 123(1): (i) That the goods are seized "under the Act." (ii) that they are seized in the reasonable belief that they are smuggled goods; and (iii) that the goods are such to which Section 123 applies. If all these three conditions are satisfied, then the law casts a burden on the person, from whose possession they have been seized, of proving that they are not smuggled goods j and if he fails to discharge the burden, the goods will be deemed or presumed to be "smuggled goods". Gold is specified as one of the classes of goods in Sub -section (2) of Section 123 to which Section 123 applies. The third condition is, therefore, satisfied in the present cases. The evidence shows that Sri Bakhshi S.S.I. LIU had received some information that the Applicants were carrying contraband gold and it can be said that he seized the gold from the possession of the Applicants in the reasonable belief that it was smuggled gold. The second condition is also satisfied. The question that remains for determination is whether the gold was seized "under the Act".
(3.) THE specific prevision applicable to seizures like the present ones is Section 110. The relevant portion of this section is as follows: If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods. The seizure Under Section 110 can only be made by the "proper officer". Clause (34) of Section 2 defines "proper officer" thus: 'Proper officer', in relation to any functions to be performed under this Act, means the officer of customs who is assigned those functions by the Board or the Collector of Customs. Admittedly, Sri Bakhshi, who seized the gold Pansas from the possession of the Applicants, was a police officer and was not the "proper officer" as contemplated by the Act. It was, therefore, contended by learned Counsel for the Applicants that the seizures from them, not being by the "proper officer", were not seizures "under the Act" and did not satisfy the first condition for the application of Section 123. That being so, it was urged that the gold seized could not be held to be smuggled gold liable to confiscation Under Section 111. This argument is sought to be met by Sri Katju in two ways: First; he says that, even if the seizure initially was not by a "proper officer", it became one by a "proper officer" when Sri Ahluwalia, who was admittedly a proper officer, took possession of the seized gold from the police authorities. Secondly, he says that the seizure was one Under Section 151 and therefore, was "under the Act.";