IN THE HIGH COURT OF JUDICATURE AT PATNA Misc. Appeal No.357 of 2006 =========================================================== Commssioner of Customs 5th Floor, Central Revenue Building, Birchand Patel Path, Patna. .... .... Appellant Versus Amar Kishore Prasad S/o Hailal Sah, Resident of Sonarpatty, P.O. & P.S. Raxaul, District East Champaran. .... .... Respondent WITH Misc. Appeal No. 358 of 2006 =========================================================== Commssioner of Customs 5th Floor, Central Revenue Building, Birchand Patel Path, Patna. .... .... Appellant Versus Amar Kishore Prasad S/o Shri Dhrup Prasad Sah, Resident of Mitha Bazar, P.O. & P.S. Ramgarhwa, District East Chaparan. .... .... Respondent =========================================================== Appearance : For the Appellant : Mr. Rakesh Kumar Singh, C.G.C. For the Respondent : Mr. Birju Prasad, Advocate =========================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL JUDGMENT Date : 4th May 2011. (Per: HONOURABLE THE CHIEF JUSTICE) These two Appeals under Section 130 of the Customs Act, 1962 (hereinafter referred to as ‘the Act’) have been preferred by the Commissioner of Customs, Patna against the common judgment and order dated 16th February 2006 passed by the Customs, Excise & Service Tax Appellate Tribunal, Kolkata (hereinafter referred to as ‘the Tribunal’) in Appeal Nos. CSM-209/03 and CSM-210/03. The matter at issue is seizure of three gold bars of high Patna High Court MA No.357 of 2006 dt. 04-05-2011 2 purity weighing 280 grams worth Rs.1,42,902/- by the Customs Officers at Raxaul in the State of Bihar from one Amar Kishore Prasad, son of Dhruv Prasad Sah, resident of Mitha Bazar, Ramgarhwa, District-East Champaran. After the seizure, on 23rd April 1996 the said Amar Kishore Prasad (hereinafter referred to as ‘the Carrier’) gave the statement under Section 108 of the Act. In the said statement the Carrier admitted that the seized gold was given to him for delivery at Muzaffarpur by the owner of the gold one Amar Kishore Prasad of Raxaul (hereinafter referred to as ‘the Owner’); that the gold was brought by the Owner from Nepal; the gold was dissolved at Birganj in Nepal to remove the markings. The said Carrier was produced before the Chief Judicial Magistrate, Muzaffarpur on 24th April 1996. The Chief Judicial Magistrate under his order dated 24th April 1996 recorded that the Carrier had not complained of ill treatment at the hands of the search party. The Carrier was remanded to judicial custody until 8th May 1996. Since the aforesaid seizure, under order dated 31st August 1997 made by the Deputy Commissioner of Customs, Muzaffarpur in Adjudication order No. 101-Cus./97, the seized gold was held to be contraband gold smuggled in India and was ordered to be confiscated. The said order of confiscation was upheld on 19th March 1999 by the Commissioner of Customs (Appeals). The said order was challenged by the Owner and the Carrier before the Tribunal in Appeal Nos. C- 277 of 1999 and C-278 of 1999. The Tribunal by its order dated 13th July 1999 allowed the appeals on the grounds of violation of principle of natural justice. The appellate authority was directed to make the order afresh after granting opportunity of personal hearing to the appellants (the Owner and the Carrier). Since the order of remand the Commissioner of Customs (Appeals) by his order dated 10th September 2003 upheld the order of confiscation made in Adjudication Order No.101/Cus./97. The said appellate order was Patna High Court MA No.357 of 2006 dt. 04-05-2011 3 challenged by the Owner and the Carrier in Appeal Nos. 308- 309/PAT/CUS./Appeal/2003 before the Tribunal. The Tribunal held that the statement dated 23rd April 1996 given by the Carrier under Section 108 of the Act was later retracted by him on 30th July 1996. The said statement, therefore, had no evidentiary value. The Tribunal further held that the Customs Department failed to make proper enquiry about the sources from where the Owner had acquired the seized gold. According to the Tribunal, the Customs Department had failed to establish that the seized gold was contraband gold smuggled into the territory of India. Accordingly, the Tribunal allowed the appeals and set aside the orders of the Commissioner of Customs (Appeals). Therefore, the present Appeals. Learned Advocate Mr. Rakesh Kumar Singh has appeared for the appellant Commissioner of Customs, Patna. He has assailed the judgment of the Tribunal. He has relied upon Section 123 of the Act. In the submission of Mr. Singh burden of proof lies on the owner of the seized goods. The Tribunal below has, without referring to Section 123 of the Act, manifestly erred in shifting the burden of proof upon the Customs Department. He has also submitted that the Tribunal has erred in holding that the seized gold was not of foreign origin. Learned advocate Mr. Birju Prasad has appeared for the respondents, the Owner and the Carrier. He has submitted that the Superintendent of Customs was not authorized to make search and seizure. The search and seizure made in the present case under Section 111(d) of the Act was unauthorized; that should vitiate the ensuing proceeding. In support thereof he has relied upon the judgment of the Gujarat High Court in the matter of Union of India v. Abdulkadar Abdulgani Hasmani [1991 (55) E.L.T. 497 (Guj.)]; of the Gauhati High Court in the matter of Brij Kishore Prasad v. Patna High Court MA No.357 of 2006 dt. 04-05-2011 4 CEGAT, Kolkata [2003 (152) E.L.T. 275 (Gau.)]; and of the Hon’ble Supreme Court in the matter of Superintendent of Customs v. Bhanabhai Khalpabhai Patel [AIR 1992 SC 1583]. Be it noted that the judgments relied upon by Mr. Prasad are rendered in criminal matters. In criminal prosecution the burden of proof lies entirely on the prosecution. Whereas, in the present case as provided under Section 123 of the Act the burden of proof lay upon the owner of the seized goods. These judgments, therefore, shall have no applicability to the present case. The authority of Superintendent of Customs of search and seizure was not questioned before the Commissioner of Customs (Appeals) or before the Tribunal. The same cannot be raised in the present Appeals. We have perused the records before us. It does appear that the Owner did submit before the Customs authorities that he had procured the seized gold from his customers at Raxaul. However, he failed to prove the statement. Section 123 of the Act, inter alia, provides that the burden of proof that the seized goods are not the smuggled goods lies on the person who claims to be the owner of the goods seized. Thus, the burden to prove that the seized gold was not smuggled lay upon the Owner. The Tribunal has erred in shifting the onus of proof upon the Customs Department. The Tribunal has also erred in holding that the statement given under Section 108 of the Act once retracted was not admissible in evidence, particularly because before the Carrier was produced before the Chief Judicial Magistrate he was in custody of the Customs officials for more than 24 hours. The Tribunal, however, has overlooked the fact that the Carrier, when produced before the Chief Judicial Magistrate on 24th April 1996, did not complain of atrocity, duress or coercion. The learned Chief Judicial Magistrate has recorded a categorical statement to that effect in his order. We have noticed a statement of retraction given by the Carrier on 28th April 1996. According to us the said retraction was an Patna High Court MA No.357 of 2006 dt. 04-05-2011 5 afterthought. Had the Carrier given the statement under Section 108 of the Act under coercion he would have made complaint before the Chief Judicial Magistrate. Although, the Tribunal did find that there was some tampering of marks and numbers on the gold bars seized from the Carrier, the Tribunal erred in holding that mere tampering of marks and numbers did not prove that the gold bars were of foreign origin. The fact that there was tampering of the marks and numbers of the seized gold bars coupled with the fact that the Owner thereof could not disclose the source of acquisition should necessarily lead to an inference that the seized gold bars were of foreign origin, smuggled into the territory of India. For the aforesaid reasons, we allow these Appeals. The impugned judgment and order dated 16th February 2006 passed by the Customs, Excise and Service Tax Appellate Tribunal made in Customs Appeal Nos. 209/03 and 210/03 is quashed and set aside. The order made by the Commissioner of Customs (Appeals) is restored. There shall be no order as to costs. Pawan/- (R.M. Doshit, CJ) (Jyoti Saran, J)