HIRALAL SARAWGI Vs. COLLECTOR OF CENTRAL EXCISE AND LAND CUSTOMS AND ANR.

JUDGEMENT

(1.) THIS rule was issued on an application under Article 226 of the Constitution. The petitioner Hiralal Sarawei (Jain) is a businessman of Gauhati and is the owner of the firm named and styled as "Messrs. Prpmsukh Hiralal" situated at Fancy Bazar, Gauhati which will hereinafter be referred to as "the shop of the petitioner". On the 8th January 1959 the Deputy Superintendent (Preventive) of Central Excise and Land Customs at Gauhati searched the shop of the petitioner, on a search warrant received from the Sub -divisional Magistrate at Gauhati. In the course of the search which was conducted in the absence of the petitioner but In the presence of his employee Sri Dungarmall Jain, a number of articles were seized. We are not concerned with the complaint made by the petitioner in his petition as regards the manner of the search, A number of properties were seized. Thereafter notice was issued to the petitioner to show cause as to why action should not be taken under Section 167(8) of the Sea Customs Act against the petitioner, In response to the notice issued by the Department the petitioner filed an objection. His contention was that these items were purchased by him from various persons on different dates.

(2.) THE point taken by the petitioner is that the burden has been cast by the department wrongly upon the petitioner. Although under Section 167(8) of the Sea Customs Act a special jurisdiction is conferred on the authorities to confiscate certain goods which have been imported in contravention of the order of prohibition issued by the Central Government either under Section 19 of the Sea Customs Act or under the Imports and Exports (Control) Act, 1947, still the Petitioner is tried of an offence and the rule of criminal jurisprudence that the burden is on the prosecution applies with equal force to the proceedings under the Sea Custom's Act. His contention is that the petitioner has claimed that he had purchased these goods in various years from 1951 to 1955.

(3.) SECTION 167(8) of the Sea Customs Act provides that -