P.K.Seth, J. - (1.) A point that has been urged by Mr. Kalyan Bandhopadhyay in this case is that whether section 123 of the Customs Act, 1962 could be attracted in respect of non-notified goods shifting the initial burden on the person claiming to be the owner or from whom the goods were seized to undertake establishing a negative proof that the goods were not smuggled.
(2.) Learned Counsel for the respondent, however, opposes the said contention on the ground that the application of section 123 is limited to the goods notified and those mentioned in sub-section (2). He relied on the decisions in Radha Kishan Bhatia vs. Union of India & Ors., AIR 1965 SC 1072 and Gian Chand & Ors. vs. State of Punjab, 1983 ELT 1365 (SC), to support his contention.
(3.) The context of section 123 would be the answer to the question. We need not search elsewhere. We may quote section 123 beneficially hereafter : "123. Burden of proof in certain cases.-[(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 - (a) in a case where such seizure is made from the possession of any person, (i) on the person from whose possession the goods were seized; and (ii)if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; (b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.] (2) This section shall apply to gold [and manufactures thereof,] watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify." 56 Commr. of Customs (Preventive) W. B., Kolkata vs. Sudhir Saha 2004(4)CHN;