minal Appeal No 126 of 1959
Appeal by special leave from the judgment and order dated June 19 1959 of the Punjab High Court in Criminal Revision No 144 of 1959
R L Kohli for the appellant
G C Mathur and P D Menon for the respondent
March 6
The Judgment of the Court was delivered by KAPUR J
This is an appeal by special leave against the judgment and order of the High Court of the Punjab and raises the constitutionality of s178A of the Act 8 of 1878 which has been held by this Court to be constitutional in the Collector of Castoms Madras vs Nathella Sampathu Chetty1
At the time of arguments before us a further point was raised that in order that s178A of the may become applicable the prosecution must further prove that the goods which were sought to be affected by the order of the Customs Officer were goods of foreign origin and there must be evidence in support of the reasonableness of the belief of the Customs Officer that the goods were smuggled goods
The question now sought to be raised was not agitated in any of the courts below
The appellant on February 11 1958 when he was sitting in a third class compartment of the Amritsa Kalka train standing on Platform No 5 of the Amrsar Railway Station was searched by a Customs Official and some bars of gold were found tied round his waist
These gold bars were seized and a recovery memo wits prepared Out of these gold 1  615 bars four were of base metal and the rest were of pure gold some bearing the stamp of Johmon Mathey  Co Ltd 999 10 tolas and 2 14 bars bore marks of NM Rothschild  Sons 10 tolas 990 0
No permit from the the Reserve Bank to import this gold was produced by the appellant
Under the Foreign Exchange Regulation Act 1917 the importation of gold without such permit is prohibited and such contravention is punishable under s23 A of the said Act read with s16781 of the 
The appellant was prosecuted under s23A of the Foreign Exchange Regulation Act and 16781 of the and his defence was that he was not in possession of the gold bars which were taken from an attache case left by a stranger under the seat where he the appellant was sitting
The Additional District Magistrate held the offence to be proved and convicted the appellant of the offence and sentenced him to one year s rigorous imprison ment
An appeal to the Sessions Judge resulted in the reduction of the sentence to 8 months  rigorous imprisonment
On revision to the High Court the sentence was reduced to six months  rigorous imprisonment
The appellant has come in appeal by special leave
The trial court accepted the testimony of the Customs Officials and held that the defence of the appellant was false and that gold worth Rs 14000 was found in his possession
The learned Sessions Judge in appeal also accepted the testimony of the Customs Officials and held the defence to be false and came to the conclusion that the gold was found in possession of the appellant
In the High Court the same plea was taken and was rejected
For the first time in this Court it is contended that before the presumption under s178A can be made applicable it must be proved by the prosecution that the goods were of foreign origin ie had beep 616 imported from abroad and only then does the presumption under section 178A arise which relates only to the question of Customs duty having been paid
In other words the contention comes to this that the prosecution must first prove that the goods in dispute in a particular case have been imported from a foreign country and once that is proved the onus then will be on the person in whose possession the goods are found that he had paid the Customs duty
Apart from the fact that this question has never been raised that is not the effect of s178A of the which provides 178A 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
2 This section shall apply to gold gold manufactures diamonds and other precious stones cigaretters and cosmetics and any other goods which the Central Government may by notification in the Official Gazette specify in this behalf
3 Every notification issued under sub section 2 shall be laid before both Houses of Parliament as soon as may be after it is issued
Two Customs officers appeared as witnesses Inspector Satnam Singh and Deputy Superintendent AN Kapur the former is an Inspector of Land Customs and the latter a Deputy Superintendent of Customs
There is nothing to indicate in their cross examination that the officers did not have a reasonable belief that the goods were smuggled goods and the question that the officers did not have reasonable belief is not suggested either from the cross examination of these witnesses of from the findings 617 of the courts below
Even in his statement of case it is contended that the mere existence of stamp of foreign companies on gold does not necessarily prove that the gold is of foreign origin
It might be put on spurious gold which may be of Indian origin
In our opinion apart from the fact that this question has not been raised it is quite clear that what s178A of the provides is that when the goods are seized in the reasonable belief that they are smuggled goods then the burden of proving that they are not smuggled goods is on the person from whose possession the goods are seized
The onus is on him to show that the goods are not smuggled that is not of foreign origin on which duty is not paid
The onus is not on the prosecution to show that the goods are not of Indian origin
That appears to be the view taken in the Collector of Customs Madras vs Nathella Sampathu Chetty 1 where at the learned Judges observed  We are therefore of opinion 1 that section 178A was constitutionally valid 2 that the rule as to the burden of proof enacted by that section applies to a contravention of a notification under section 81 of the Foreign Exchanges Regulation Act 1947 by virtue of its being deemed to be a contravention of a notification on under section 19 of the  3 that the preliminary require ment of section 178A that the officer seizing should entertain  a reasonable belief  that the goods seized were smuggled was satisfied in the present case
 In our opinion there is no merit in this appeal and it is dismissed
The appellant will surrender to his bail bonds
Appeal dismissed


Summary:
The appellant was searched by a Customs Official and some bars of gold were found tied round his waist
Out of those bars some were of base metal and the rest of pure gold which borne foreign markes
The appellant had no permit from the Reserve Bank of India to import the gold
He was prosecuted and convicted under section 16781 of the 
He brought an appeal to the Supreme Court by Special leave
Held that section 178A of the  is constitutional
The contension that before the presumption under s178A of the could be raised the prosecution had to prove that the gold was of foreign origin was rejected and held that section 178A provides that when the goods are seized in the reasonable belief that they are smuggled goods the onus is on the accused to show that they are not smuggled
Collector of Customs Madras vs Nathella Sampathu Chetty 1962 3 SCR p786 followed