The Judgment of the Court was as follows:

B.C Mitra, J.:— The question involved in this appeal is if the seizure and confiscation of certain bars of gold by the customs authorities is valid. The gold bars in question were dispatched by one S.R Darnani from Bombay and were addressed to Nathmall Jalan, the appellant. The bars were packed in four parcels bearing Nos. 565, 566, 567 and 568.

1. The customs authorities received some secret information, in consequence of which a watch was maintained near Barabazar Post Office by a customs officer on February 8, 1962. At about 9-45 in the morning one Pyarelal Jalan was found coming out of the post office with a packet in his hand. He was challenged by the customs officer and on such challenge he stated that the packet carried by him contained four parcels of gold bullion, which had been sent by post from Bombay in the name of his father Nathmall Jalan. The packets were opened and were found to contain four parcels bearing Nos. 565 to 568, despatched by one S.R Damani of 315 Kalbadevi Road, Bombay, on February 6, 1962, by air from Shroff Mahajan Post Office, Bombay. The packets were addressed to Nathmull Jalan of 85/1 Monohardass Street, Calcutta. Each parcel was insured for Rs. 200/- only and contained one bar of gold. Pyarelal Jalan was taken to the Customs House, along with the gold, and his father Nathmall Jalan the appellant was also contacted on the same day, and he also came to the Customs House. Both father and son made statements in writing regarding the gold bars. The substance of the statement of Nathmall Jalan was that he gave a sum of Rs. 1,00,000/- in cash to one Shawanmall Damani on February 3, 1962, with instructions to him to go to Bombay and purchase the gold bars. The payment was made in Rs. 1000/- and Rs. 100/- currency notes. The money was not withdrawn from any bank as Nathmall kept large sums of money in his house. He did not take any receipt from Damani for the amount paid to him. Instructions were given to buy Bombay bullion weighing 8 kilos. The gold bars are alleged to have been purchased from a bullion merchant in Bombay known as Choksey Virendra Kumar Mohanlal.

2. Being aggrieved by the seizure followed by an order of confiscation of the gold bar, the appellant moved this Court on September 27, 1962, under Art. 226 of the Constitution and obtained a rule nisi, which was discharged by a judgment and order of Sinha, J., dated August 13, 1964. This appeal is directed against the said judgment and order dated August 13, 1964.

3. The appellant's contention is that the four gold bars weighing 7993.400 grams each, and all marked ‘NR6153’ were purchased by his employee-cum-broker, the said Shawanmall Damani ailas Shamratan Damani from the said firm of bullion merchants. The marking on the bar, namely, ‘NR6153’ showed that the bars were dealt with by a recognised company which was licensed as refiners and assayers, namely, National Refinery Private Ltd. It is allgeed that several gold pieces weighing 8006 grams, were melted at the said refinery on February 6, 1962. These gold pieces were brought to the refinery by one Chandanmal Maganlal. The said firm of bullion merchants submitted a statement in writing to support the appellant's case of bona fide purchase of the gold bars. In this statement it is alleged that on February 6, 1962, one Chandanmal came to the shop of Choksey Virendra Kumar Mohanlal with four bars of gold bearing the mark ‘NRM6153’ and weighing grams 7993-400 milligramme for sale. The said Chandanmal produced the fineness certificate which was 99-12. It is further alleged that on February 6, 1962, the rate of gold was Rs. 119-75 n.p and as the fineness of the said bars was 99-12, the said Choksey Virendra Kumar Mohanlal agreed to buy the gold at the rate of Rs. 119/- for ten grams. The total amount paid to the said Chandanmal Maganlal for the gold bars was Rs. 94,284-40. In this statement it is also alleged that Nathmall Jalan was not the regular customer of Choksey Virendra Kr. Mohanlal and he brought the above four bars of gold at the rate of Rs. 119.70 The purchase was made by Nathmall Jalan against payment in cash.

4. The said National Refinery Private Ltd. also submitted a statement in writing dated February 8, 1962, to the Assistant Collector of Customs, in which it is stated that on February 6, 1962, a person of he name of Chandanmal Maganlal brought 8006 gold pieces for melting with instructions to make four bars, out of the said gold pieces. After melting, the total weight of the four bars was grams 7994-500 milligramme. Rs. 35-95 n.p was charged for melting and assaying. It is also stated that Chandanmal Maganlal was not a regular customer and therefore the manager would not be in a position to identify him. In support of the appellant's contention that he purchased the gold bona fide, he submitted a photostat copy of the bill from Choksey Virendra Kumar Mohanlal being Bill No. 992 dated February 6, 1962, for the price of gold purchased by the appellant.

5. A show cause notice dated April 13, 1962, was served by the respondent No. 2 on the appellant, in which after stating the facts as hereinbefore stated, the appellant was called upon to explain the matter in writing within a fortnight from the date of receipt of the said show cause notice and also to show cause why the gold bars should not be confiscated under section 167(8) of the Sea Customs Act, 1878, (hereinafter referred to as the Act) read with Section 23A of the Foreign Exchange Regulation Act, 1947, and why penal action should not be taken against the appellant under section 167(8) of the Act. Besides serving the said show cause notice the customs authorities made enquiries regarding the gold bars and they found that no person of the name of Shawanmall Damani was known to have stayed at any time at 315, Kalbadevi Road, Bombay. Enquiries were also made regarding Ghandanmal Maganlal, who also could not be traced, and about whom nobody knew anything at the bullion market at Bombay.

6. After considering the statements furnished by the appellant and his son and also by the firm of Choksey Virendra Kumar Mohanlal and National Re finery Private Ltd. the respondent No. 1 made an order on June 22, 1962, holding that the seized gold was smuggled gold and was liable to confiscation. It was also held that the appellant was not concerned in the smuggling of the gold. An order was accordingly passed confiscating the seized gold under section 167(8) of the Act read with section 23A of the Foreign Exchange Regulation Act.

7. Mr. Priti Bhusan Burman, learned advocate for the appellant, con tended that the order of confiscation was bad as the seizure of the gold bars by the customs authorities, which was followed by the order of confiscation was itself bad. It was argued that the customs authorities seized the gold in exercise of the powers under Section 178A of the Act, and the seizure was made at the post office. But before a valid seizure of any goods could be made under Section 178A of the Act, it was argued, there must be a reasonable belief that the goods seized were smuggled goods. There could be no ground for a reasonable belief that the gold bars were smuggled gold when the seizure was purported to be made at the post office. Grounds for such a reasonable belief, it was argued, might have arisen after interrogation of the appellant and his son by the customs authorities and after taking into consideration the statements furnished by them. But the section contemplated that a reasonable belief that the goods were smuggled goods must have existed before the seizure was made. If, therefore, there was no ground for such a reasonable belief, the seizure of the gold, it was argued, at the Barabazar Post Office or in front thereof must be held to be bad and contrary to the terms of section 178A of the Act. It was next argued that the initial seizure of the goods being illegal, the subsequent confiscation must be held to be bad.

8. The next contention of Mr. Bur-man was that even assuming that the seizure of the gold bars by the customs authorities was valid, the subsequent order of confiscation under Section 167(8) of the Act must be held to be bad. This contention was developed as follows:

9. Under section 178A of the Act the burden of proving that the gold bars were not smuggled goods was on the appellant, he being the person from whose possession the goods were seized. This burden, it was argued, was amply discharged by the appellant who produced sufficient evidence to show that the gold bars were purchased from a Bullion Merchant at Bombay. Reports of the refiners and assayers showed that the gold was brought to them in the shape of 8006 gold pieces which were melted and formed into four gold bars. The evidence produced by the appellant, it was argued, was sufficient to enable the appellant to discharge the onus imposed upon him by the statute. It was next argued that the onus thereupon shifted on the customs authorities to prove that the gold was smuggled gold, and this onus was not discharged by the customs authorities.

10. The next contention of the learned advocate for the appellant was that Section 178A of the Act applied to gold as such, that is to say, pure gold and it did not apply to a metal which was created by mixture or fusion of pure gold with other alloys, and the metal content of the gold bars which were seized and later confiscated was not pure gold. The certificate from National Refinery Private Ltd. showed that the fineness of the dip muster of the melting was 991.2 It was, therefore, argued that the metal content of the bars seized was some metal other than gold, that is to say, a metal which was made from a mixture of gold and some other alloy. It was, therefore, argued that the gold bars could not be seized under section 178A of the Act.

11. In support of the above contentions Mr. Burman firstly relied upon a decision of the Supreme Court in (1) Gianchand v. State of Punjab, A.I.R (1962) S.C 496, for the meaning of the term ‘seizure’. In that case it was held that seizure under section 178A of the Act, meant taking possession of goods contrary to the wishes of the owner of the property. Mr. Bur-man argued that in so far as the gold bars were taken charge of by the customs authorities at or near the post office, and from there the bars were taken to the Custom House, the seizure took place at the post office and not at the Custom House. It was argued that this seizure at or near the post office must be based on a reasonable belief that the gold was smuggled, and because there could be no such reasonable belief until enquiries and interrogation, which followed the seizure, the seizure itself was not according to law and therefore must be held to be bad.

12. The next case relied upon by Mr. Burman is a decision of the Madras High Court reported in (2) A.I.R, (1959) Mad. 142 (Nathella Sampatha Chetty v. Collector of Customs), in which it was held that when goods were seized under section 178A of the Act, the existence of a reasonable belief was a condition precedent to be satisfied before onus of proof could be imposed on the person from whom the goods were seized and that the reasonable belief that the goods were smuggled was a prerequisite for the application of section 178A of the Act. It was further held that unless it was established that the gold was seized in the reasonable belief that it was smuggled gold section 178A could not be applied. This decision, however, went up in appeal before the Supreme Court and the decision of the Supreme Court is reported in A.I.R (1962) S.C 316. The judgment of the Madras High Court was reversed and the appeal was allowed, but Mr. Burman contended that the Supreme Court did not overrule the decision of the Madras High Court so far as it related to the question of a reasonable belief as a prerequisite of seizure of the goods. In that case certain blocks of gold were taken charge of by the customs authorities from a passenger who arrived at Bombay by rail. A similar question was raised, namely, whether taking charge of the gold at the railway station was seizure. Dealing with this question, the Supreme Court held at page 337 of the report as follows:

“even taking the record of the detention in the mahazar prepared at the Central station as ‘the seizure’ we do not agree with the learned Judges of the High Court that the seizing-officer could not entertain a reasonable belief that the gold seized was smuggled. The reasonableness of the belief has to be judged by all the circumstances appearing at that moment. In the present case, the quantity of gold in the possession of Nandgopal of the value of over one lakh of rupees — was certainly a very relevant factor to be taken into account and which could be considered in judging the matter. No doubt, such a quantity could be the subject of bonafide purchase in the course of normal trade, particularly when a person in possession was the representative of a well-known firm of bullion dealers. But one would also normally expect that the representative would have secured a bill or voucher to evidence the purchase. In other words:

(1) it was not a case of a few trinkets of gold or small quantity purchased for domestic or personal use but a considerable amount for purposes of business

(2) the undelivered letter addressed to M/s. Mathurdas Gopalkrishnayya & Co., which admittedly had a bearing upon the purchase of gold in possession of Nandgopal necessarily drew an amount of suspicion on the theory of a bona fide purchase. These circumstances, in our opinion, which were admittedly present at the moment when the gold was taken by the Custom Officer at the Central station did tend to raise a reasonable suspicion that the gold seized had been obtained illicitly and this was sufficient to constitute in the words of the statute, ‘a reasonable belief that the goods (gold) were smuggled’.”

13. This decision in my opinion is entirely against the contention of Mr. Burman. A similar question was raised, namely, whether the detention of the goods by the customs authorities amounted to a seizure and if such a seizure could be held to be valid on the ground that no reasonable belief could have been formed until further subsequent enquiries and investigation. The Supreme Court negatived the contention that there could be no seizure until further subsequent enquiries and held that in the facts of the case there was a sufficient ground for having a reasonable belief that the goods were smuggled. In this case also the appellant's son was found to be in possession of a large consignment of gold valued at nearly Rs. 1,00,000/-. Each packet of this gold was insured for a paltry sum of Rs. 200/- only. Finally the customs authority had some secret information, as stated in the show cause notice dated April 13, 1962, that smuggled gold was being received at the post office. In these facts there certainly were grounds for a reasonable belief that the gold seized had been obtained illicitly and was smuggled gold.

14. I now proceed to deal with Mr. Burman's contention noted earlier in this judgment, that the gold bars could not be seized or confiscated as the gold was not pure gold. It was argued that the order of confiscation was made under section 167(8) of the Act, which provided for confiscation of goods, the importation or exportation of which was for the time being prohibited. It was next argued that the statute prohibited the importation of gold, and this prohibition must be construed to mean pure gold, and not gold which was mixed with alloy. In this case, it was argued, the gold bars were not made of pure gold, but there was some quantity of alloy mixed in the gold bars, as was evident from the report of the refiner and assayer. As the gold bars were not made of pure gold the order for confiscation must be held to be bad, as such an order could be made in the case of pure gold only. Mr. Burman referred to section 120 of the Customs Act, 1962, and argued that under the provisions of this section, where smuggled goods were mixed with other goods in such a manner that the smuggled goods could not be separated from such other goods, the whole of the goods should be liable to confiscation. It was argued that there was no such provision in section 167(8) of the Act, and therefore the order for confiscation must be held to be invalid. There is no substance in this contention. In the first place nowhere in the petition the appellant alleged that the gold seized and confiscated was not pure gold, but gold mixed with some alloy and therefore an order for confiscation could not be made. On the other hand, the appellant alleged in paragraph 3 of the petition that four bars of gold weighing 7993.400 grams each were purchased from Choksey Virendra Kumar Mohanlal. In paragraph 4 of the petition it is alleged that the appellant's son took delivery of four parcels containing the said gold from Barabazar Post Office. In paragraph 6 of the petition the appellant has alleged that photostat copies of the bill relating to the purchase of the said four bars of gold were forwarded to the customs authorities and a request was made for the release of the said gold by the customs authorities. In paragraph 10 of the petition it is alleged that the appellant was informed by the customs authorities that there was reason to believe that the gold was smuggled gold.

15. Turning now to a petition dated May 17, 1962, filed by the appellant before the respondent No. 1, which is annexure ‘A’ to the petition, and is to be found at page 33 of the Paper Book, it will be seen that in paragraph 6 of this petition the appellant has alleged that he sent his said representative to Bombay to purchase gold and despatch it to Calcutta by post. In paragraph 8 it is alleged that the appellant's son took delivery of the postal parcel containing the said gold and in paragraph 12 it is alleged that the gold should be released forthwith and the proceedings should be dropped on the grounds set out therein.

16. It will thus be seen that the appellant nowhere alleged or suggested that the gold was mixed with alloy and was anything other than gold or that the metal in the bar seized was not pure gold but was made of gold and some other alloy mixed with it. It is for the first time before us that the appellant sought to make out a case that alloy was mixed with pure gold, and was thereafter made into gold bars and for that reason the order for confiscation could not be made under Section 167(8) of the Act, as the gold was not pure gold.

17. In support of this contention reliance was placed upon a decision of the Bombay High Court reported in (3) A.I.R (1961) Bom. 48; Valimahomed Gulam Hussain Sonavala & Co. v. C.T.A Pillai, Additional Collector of Customs. In that case it was held that the right to confiscate smuggled goods under Section 167(8) of the Act did not carry with it the right to confiscate unsmuggled goods, and that it was not open to the Customs authorities to confiscate similar goods, even though they might be of same quality, bulk and value and that if smuggled goods had been fused with other goods so that the smuggled goods lose their identity, it would not be open to the Customs authorities to confiscate any part of these goods

18. The decision of the Bombay High Court mentioned above is of no assistance to the appellant as the facts in that case were entirely different. It was in evidence in that case that gold which was smuggled from Pakistan was sold to a goldsmith who admitted that the smuggled gold was melted by him and base metal was added to it, and then it was converted into a ‘patla’ or bar. There was clear evidence in that case that alloy was mixed with gold and it was on that basis that it was held that by reason of the fusion of the base metal with gold, the identity of the smuggled gold was lost. In the case now before us there is no evidence of the mixture of any alloy or base metal with the gold so as to make the smuggled gold lose its identity.

19. Then again this point, namely, that the gold seized is not gold but is a different metal, having been mixed with some alloy, has been raised before us for the first time. Such a contention, in our opinion, ought not to be allowed to be raised in appeal as it involves questions of fact, namely, whether base metal or alloy was mixed with smuggled gold and if so, to what extent. The respondents got no opportunity of controverting the allegations now sought to be made for the first time in this appeal. In our opinion, there is no substance in this contention of the appellant and in any event it ought not to be allowed to be raised in this appeal.

20. Mr. G.P Kar, learned counsel for the respondents, contended that there was no substance in the appellant's contention that there was no ground for forming a reasonable belief that the gold was smuggled gold at the time when the gold bars were seized at the post office. He argued that belief was a subjective matter, and it was not open to the appellant to challenge or question the existence of a reasonable belief in the mind of the Customs authorities. It was argued that even if the appellant's contention was accepted, namely, that the seizure of the gold bars took place at the post office, and not at the Customs House, there were ample materials for a reasonable belief that the gold was smuggled gold. Reference was made to the show cause notice dated April 13, 1962, the opening words of which showed that the Customs authorities had prior secret information that smuggled gold was was going to be received at the post office, and acting on such information a watch was kept near the post office. Therefore, Mr. Kar argued that there were sufficient grounds for a reasonable belief that the gold which was going to be received at the post office was smuggled gold. It was further argued that upon inspection of the packets it was found that each packet was insured for Rs. 200/- only and therefore when it was found that the four packets contained a large consignment of gold the value of which was nearly Rs. 1,00,000/-, but such consignment was insured for a paltry sum of Rs. 800/- only, there was ample justification for a reasonable belief that the gold was smuggled gold.

21. It was next argued that the trial Court came to the conclusion that the seizure of the gold took place at the Custom House, upon enquiries and investigation, made by the Custom Officers. It was argued that Sinha, J., was right in coming to that conclusion. But the decision of the trial Court was attacked by the learned advocate for the appellant on the ground that the seizure took place at the post office, when there could be no ground for a reasonable belief that the gold was a smuggled gold. Mr. Kar sought to repel this contention of the appellant by contending that even if it was held that the gold was seized at the post office, there were ample grounds for a reasonable belief that the gold was smuggled. In support of this contention Mr. Kar firstly referred to a decision of the Punjab High Court reported in (4) A.I.R (1960) Punj. 664 (State of Punjab v. Krishnalal), in which it was held that the legislature thought it wise, having regard to the peculiar nature of the offence dealt with under the Sea Customs Act, to put the onus of proving his innocence upon the accused person where there was a reasonable belief that he was in possession of smuggled goods and such goods were actually seized from his possession. Mr. Kar next referred to the decision of the Supreme Court in (5) Pukhraj v. D.R Kohli, A.I.R (1962) S.C 1559. In that case it was held that once it was shown that the goods were seized as contemplated by section 178A it would be for the appellant to prove that the goods were not smuggled goods, and as in that case it was held by the authorities that the person charged had not discharged the onus imposed upon him by section 178A, the statutory presumption remained unrebutted, and the goods must be dealt with on the basis that were smuggled goods and as soon as that conclusion was reached, it must follow that the customs authorities could confiscate the goods under section 167(8) of the Act. Dealing with the question of a reasonable belief under section 178A of the Act and the appellant's contention in that case that the question whether there was a reasonable belief was justiciable, the Supreme Court held that in that case it was found that the appellant was carrying on his person a large quantity of gold valued at nearly Rs. 30,000/- and this by itself justified a reasonable belief in the mind of the officer that the gold might be smuggled. In that case also information was received that the appellant was involved in smuggling of gold and that was why he was intercepted at a railway station. Relying upon this decision Mr. Kar argued, that the grounds in this case for a reasonable belief, that the gold was smuggled, were much stronger than in the case before the Supreme Court, firstly because the value of the gold was much more, namely, nearly Rs. 1,00,000/-, secondly this large consignment of gold was insured for a small sum of Rs. 880/-. These facts, Mr. Kar argued, provided ample grounds for a reasonable belief, quite apart from the information received by the customs authorities that the appellant was involved in smuggling of gold.

22. Mr. Kar also referred to another decision of the Supreme Court in (6) Babulal Amthalal Mehta v. Collector of Customs, (1958) S.C.A 13. In that case dealing with the effect of section 178A it was held that the import of that section was very wide as it applied not only to the actual smuggler from whose possession the goods were seized, but it applied also to those who came into possession of the goods after having purchased the same after the same had passed through many hands or agencies. It was further held that if the customs authorities had a reasonable belief that certain goods in the possession of an innocent party were smuggled goods and the same were seized under the provisions of the Act, then the person from whose possession the goods were seized, however, innocent he might be was bound to prove that the goods were not smuggled goods. Such an innocent party, it was further held, might have bona fide paid adequate consideration for the purchase of the articles without knowing that the same were smuggled. On the question of reasonable belief the Supreme Court held that “the only prerequisite for the application of the section is the subjectivity of the Custom Officer in having a reasonable belief that the goods are smuggled.”

23. Relying upon the decisions mentioned above, Mr. Kar argued that even if the appellant was an innocent purchaser who had bona fide paid adequate consideration for the purchase of the gold bars, the onus of proof that the gold was not smuggled gold was upon him, as the customs authorities had seized the gold on a reasonable belief that the gold was smuggled gold.

24. In our opinion, the contention of Mr. Kar is well founded. The materials on the records which I have discussed earlier, justified a reasonable belief in the customs authorities that the gold was smuggled gold and acting on such belief the gold was seized.

25. The onus of proving that the gold was not smuggled gold, was upon the appellant, who according to the customs authorities had failed to discharge that onus. In coming to this conclusion the customs authorities had taken into consideration the evidence which was produced on behalf of the appellant. In our opinion, there is no merit in the appellant's contention that the onus imposed upon him under section 178A was discharged by production of evidence that the gold was purchased by him from a bullion dealer at Bombay and that thereafter the onus shifted to the customs authorities to prove that the gold was smuggled gold. There is no warrant for this proposition in section 178A. The question whether the gold was smuggled gold was a matter of subjective satisfaction of the customs authorities. They had information that the appellant was going to receive smuggled gold at the post office and they had acted on such information and thereupon seized the gold. It is not open to the appellant to challenge the grounds of reasonable belief of the respondents as required by section 178A. Even if the appellant was not concerned in the smuggling of the gold, as has been held by the respondent in the order of adjudication, and even if he was a bona fide purchaser of the gold bars, the order of confiscation under section 187(8) of the Act read with section 23A of the Foreign Exchange Regulation Act cannot be challenged by the appellant. In our opinion, the trial Court was entirely right in holding that the gold bars were validly seized by the customs authorities and also that the order of confiscation under section 167(8) of the Act was validly made by the respondent No. 1.

26. For the reasons mentioned above, this appeal fails and is accordingly dismissed with costs.

27. Certified for two counsel.

Bose, C.J:— I agree.

C.R.D