Shamsuddin,:-
Shamsuddin , j. : the appeal has been directed against the order of acquittal passed by the court of additional judicial magistrate of i class, trivandrum in a complain filed by the assistant collector of central excise, trivandrum , alleging that both the respondents committed offences punishable under s. 135 (1) of the customs act, 1962. In acquitting the respondents the learned magistrate based his decision mainly on the non - production of the notifications or copies thereof issued by the central government in exercise of the powers conferred by ss. 11 - b and 123 (2) of the customs act which is referred to hereinafter as the act for short.
S. 11 - b of the act lays down as follows:
11 - b power of central government to notify goods. - if having regard to the magnitude of the illegal import of goods of any class or description, the central government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import circulation or disposal of such goods, or facilitating the detection of such goods, it may, by notification in the official gazette, specify goods of such class or description. S. 123 of the act reads as follows.
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, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the central government may by notification in the official gazette, specify.
2. The notifications issued by the central government in exercise of the powers conferred by the above provisions were neither produced nor marked by the prosecution before the lower court in this case. Accepting the contention raised by the counsel for the respondents the learned magistrate took the view that the above notifications could not be taken judicial notice of by the court, since the said notifications are not laws in force within the meaning of s. 57 (1) of the evidence act it is not disputed that the said notifications do not come under any other categories enumerated in clauses (2) to (13) of s. 57 of the indian evidence act, 1872, which are required to be taken judicial notice of by the court.
3. According to the learned magistrate, as the prosecution failed to prove the said notifications the prosecution must fail. Thomas, j. Before whom the appeal came up for hearing doubted the correctness of a division bench ruling of this court in pyli v. State of kerala , 1966 k. L. T. 102 which held that a court cannot take judicial notice of notifications issued by the government by virtue of the provisions of s. 57 of the evidence act. Accordingly, the learned judge referred the matter to be heard and determined by a bench of two judges, and it is thus the matter came up before us.
4. It is convenient now to narrate the facts leading to the prosecution of the respondents. Respondents 1 and 2 are husband and wife and were conducting two shops by name ulloor enterprises and sandhya textiles at "on"> "on"> trivandrum. Both of them were residing in a building bearing t. C. No. 1/313 (kovilnada veedu) at ulloor , "on"> "on"> trivandrum situated near their shops. On information received that goods of foreign origin were being sold in the shops and such goods were also stored in their residence, the officers of the customs preventive and intelligence unit searched the premises of ulloor enterprises on 30 - 7 - 1981 and seized 10 items of goods of foreign origin such as radio, cassette recorder etc. On the same day the residence of accused 1 and 2 was also searched which resulted in the seizure of 22 items of goods of foreign origin. According to the prosecution, total value of the goods thus seized was rs. 27,347. After adjudication under the customs act, 1962 the goods were confiscated to the government. According to the prosecution, the respondents committed the offence punishable under s. 135 (1) of the customs act, 1962 and acomplaint was filed by the appellant herein before the lower court.
5. On the respondents pleading not guilty to the charge, p. Ws. 1 to 6 were examined and exts. P1 to p5 and m. Os. 1 to 36 were marked. The respondents denied the incriminating circumstances appearing against them. According to them the goods seized were not stored for sale in the shop. The 1st respondent stated that all the articles were brought by him, from "on"> "on"> mali "on"> island after payment of customs duty for his domestic use. The 2nd respondent also gave a similar version. On behalf of the defence d. W. 1. The officer in charge of the state bank of travan - core, air port exchange, "on"> "on"> trivandrum , was examined and exts. D1 and d2 were marked.
6. P. W. 1, the assistant collector of central excise is the complainant p. W. 2 is the superintendent who along with his party seized the goods. P. W. 3 is the inspector under p. W. 2 and he was also with p. W. 2 at the time of search and seizure. P. W. 4 is the father of the second accused who attested ext. P. 2. Mahazar prepared at the time of seizure from the shop. Ext. P5 is the statement of p. W. 4 before the customs authorities. P. Ws. 5 and 6 were called as witnesses to the search and attestors to the scene mahazars exts. P2 and p4 respectively. P. Ws. 4, 5 and 6 turned hostile. P. Ws. 4 and 5 deposed that they signed the mahazar at the general hospital junction.
7. P. W. 2 deposed that he was the divisional superintendent at "on"> "on"> trivandrum , in the customs department on 30 - 7 - 1981 be was holding the charge of superintendent of customs, preventive unit as, the superintendent of customs preventive unit was a leave. On the basis of the source information he along with his party inspected the shop ulloor enterprises at ulloor junction at 3. 30 p. M. The 2nd respondent who is the owner of the shop and her father p. W. 4 were present. On examining the shop in the presence of the witnesses, he found goods of foreign origin kept for sale. He demanded the production of the records for payment of duty in respect of the goods. He also stated that the area was not a notified place for dealing in foreign goods. The 2nd respondent told him the radio, cassette recorder etc. Belonged to her brother. He seized the goods m. Os. 2 to 10 found in the shop under ext. P. 2 mahazar. He recorded the statement of the 2nd respondent extp. 3 which stated that the articles m. Os. 2 to 10 were purchased from various persons for the purpose of sale. As follow up action he searched the house bearing t. C. No. 1/313 where respondent no. 2 and her father were residing. M. Os. 11 to 36 were found in the house. The 1st respondent was not present at that time. As no documents were produced evidencing lawful acquisition of these articles, he seized m. Os. 11 to 36 under ext. P. 4 mahazar.
8. The most important question that falls for our consideration, is whether the notifications referred to above can be taken judicial notice of by the court.
9. Sri. K. Prabhakaran , learned counsel for the appellant submitted before us that the book containing copies of notifications was placed before that trial court for perusal. He has also filed crl. M. P. No. 1530 of 1987 seeking reception of the notifications in question as evidence. The relevant notifications are produced along with the petition. The prayer in the crl. M. P. Was allowed by us by order dated 13 - 10 - 1987. However, in view of the importance of the question, it is necessary to consider whether the notifications issued under ss. 11 - b and 123 (2) of the act can be taken judicial notice of.
10. S. 57 (1) of the evidence act provides that all laws in force in "on"> "on"> india can be taken judicial notice of. We will now examine whether the notifications issued under ss. 11 - b and 123 (2) of the act are laws within the meaning of s. 57 (1) of the evidence act. Large number of decisions have been cited before us by counsel on both sides.
11. In chacko pyli v. State of kerala , 1966 k. L. T. 102 the question whether a notification issued under s. 19 of the kerala forests act, 1962 could be taken judicial notice of under s. 57 of the evidence act came up for consideration of a division bench of this court. S. 19 of the act contemplates publication of a notification in the gazette specifying the limits of the forests which are intended to be reserved and declaring the same to be reserved from the date to e fixed by such a notification. S. 27 of the forest act provides for penalties for trespass of damage in reserve forests. The division bench held that the court cannot take judicial notice of the notification issued under s. 19 of the forest act by virtue of the proviso contained in s. 57 of the evidence act, but such a notification is a public document within the meaning of s. 78 of the evidence act, and has to be proved as provided in the said section. It is the correctness of this decision that is doubted by the learned single judge.
12. Chandrasekharan v. State, 1966 k. L. T 638 and m. Antony v. Forest range officer, 1977 k. L. T. 691 two learned single judges, of this court and in executive officer v. Elavannoor panchayat a division bench of this court followed this decision. The notification in the first of these decisions was one issued under the essential supplies (temporary) powers act fixing the maximum price, the notification involved in the second decision was issued under s. 19 of the forest act and the division bench in the other decision was dealing with a notification issued under the village panchayats act. These decisions proceeded on the basis that the concerned notifications were not laws in force within the meaning of s. 57 of the evidence act.
13. However, a single judge of this court in abdulla haji v. Food inspector, muliyar pancnayat , 1967 k. L. T. 577 and a full bench of this court in executive officer v. V. P. Devassy , 1970 k. L. T. 991 and another division bench of this court in state of kerala v. Vijayan , 1978 k. L. T. 342 held that notifications involved in those cases are laws and therefore judicial notice can be taken in respect of those notifications under. S. 57 of the evidence act. In the first of these decisions the notification involved related to declaration of local areas and appointment of food inspectors under the prevention of food adulteration act, the full bench dealt with a notification issued by the government under ss. 82 and 134 of the panchayats act and the notification involved in vijayan s case, 1978 k. L. T. 342 was one relating to grant of exemption under s. 25 (1) of the kerala buildings (lease and rent) control act. The full bench and the division bench in the above referred cases held that the act of issuing of the relevant notifications is a legislative act.
14. The supreme court had to consider the question whether a notification issued in exercise of a power conferred by an act has force of law, in state of bombay and another v. F. N. Balsara , (1951) 2 m. L. J. 141: 1951 s. C. J. 478:1951 s. C. R. 682: 52 crl. L. J. 1361: a. I. R. 1951 s. C. 318. The court made the following observation:
25. S. 139 of the act authorises the provincial government by general or special order, to exempt and intoxicants or class of intoxicants from all or any of the provisions of the act. An order made by the provincial government in exercise of the power conferred by this section owes its legal efficacy to this section and therefore in the eye of law the notification has the force of law as if made by the legislature itself.
This position has been reiterated by the supreme court in kailash nath and another v. State of "on"> "on"> u. P. And others, a. I. R. 1957 s. C. 790. The notification which arose for consideration in this case was one issued under s. 4 of the uttar pradesh sales tax act which empowered the state government either to exempt certain kinds of transactions from the purview of sales tax completely or to allow a rebate of a portion of the tax payable. With regard to the nature of this notification, the supreme court observed thus:
this notification having been made in accordance with the power conferred by the statute has statutory force and validity and, therefore, the exemption under the notification is as if it is contained in the parent act itself.
Again in saraswati industrial syndicate ltd. Etc. V. Union of india, a. I. R. 1975 s. C. 460: (1974) 2 s. C. C. 630 the supreme court held that price fixation by the government in exercise of power s conferred by clause 7 (2) of the sugar control order, 1966 is more in the nature of legislative measure.
15. In two recent decisions viz. , union of india v. Nihar kanta sen andothers , (1987) 3 s. C. C. 405: a. I. R. 1987 s. C. 1713 and union of india and another v. Cynamide india ltd. And another, (1987) 2 s. C. C. 720: a. I. R. 1987 s. C. 1802 the question again came for the consideration of the supreme court. In the former case the notification involved was one issued under s. 4 of the west bengal estates acquisition act s. 2 (1) of the west bengal estates acquisition act (1 of 1954) , defined the term intermediary and s. 4 of the said act provided that an intermediary s right stood acquired by the state on the issue of a notification to that effect thereunder. It was contended that the right of the intermediary vested in the state on issue of a notification under s. 4 of the said act the high court refused to accept the contention on the ground that the notification was not legally proved though the state had filed copies of the relevant notifications before the high court as additional evidence. The supreme court observed that notifications issued were published in the gazette and the high court should have taken judicial notice of the same. In the latter case the supreme court held that a notification issue under the drugs (price control) order providing for fixation of price is a legislative activity.
16. A similar question came up for consideration before a full bench of the madhya bharath high court in state v. Gopal singh, a. I. R. 1965 m. B. 138 the full bench held:
if an act, ordinance or order make it an offence to sell certain goods at a price higher than the maximum price that may be specified in that behalf, and delegates to an authority the power to specify by a notification the maximum price, then there is no obvious reason why such a notification issued in the exercise of the delegated power of legislation should not be regarded as part of the law.
Indeed, if an order contemplated by art. 366 (10) must be, as observed in a. I. R. 1955 s. C. 25 (c) one in the nature of a legislative provision, and if the order is not made by the legislature itself, it follows that it must then necessarily be one made in the exercise of the power delegated in that behalf.
The decision as to fixing of a certain price as the maximum price is no doubt an administrative or executive act but the notification of the price so fixed as the maximum price for which the goods can be sold is not an executive order; it is legislative provision made in the exercise of delegated legislative power.
This view is fortified by the decision of the supreme court in state of "on"> "on"> bombay v. F. N. Balwara a. I. R. 1951 s. C. 318 where a notification issued by the government under the bombay excise act was held to be one having the force of law and as if made by the legislature itself. S. 139, bombay prohibition act, 1949, authorises the state government by general or special order to exempt any intoxicants or class of intoxicants from all or any of the provisions of the act.
The supreme court observed at page 329 that on order made by the provincial government in the exercise of the power conferred by this section owes its legal efficacy to this section and, therefore, in the eye of law the notification has the force of law as if made by the legislature itself. After this authoritative pronouncement of the supreme court the question whether a notification issued by the government or any competent authority in the exercise of delegated power of legislation can be judicially noticed, can admit of no argument and it must be held that such a notification is a part of the law itself and, therefore, judicial notice of the notification can be taken under s. 57, evidence act. A full bench of the madhya pradesh high court in state of madhya pradesh v. Ramachandran , a. I. R. 1977 m. P. 68 considered the nature of the notification issued under s. 7 (1) of the telegraph wires (unlawful possession) act and held the said notification is law and had to be taken judicial notice of g. P. Singh j. Who spoke for the bench said thus:
8. Under our legal order and jurisprudence based on the constitution, law is not limited to legislative enactments. All forms of delegated legislation and conditional legislation amount to law. All orders and notifications made and issued under statutory powers and which are legislative in nature amount to law. A statutory order or notification will be legislative in nature if in substance it adds to, supplements, modifies or amends a statute or exempts certain matters from its operation.
17. Having regard to the complexity of problems which modern state has to face and the welfare measures that a state is called upon to undertake, it is well nigh impossible for the parliament or the state legislature to exercise all legislative functions directly. It is well recognised that the parliament and the state legislature have authority to delegate their legislative functions in a limited way for various purposes to the executive. The exercise of those powers is called subordinate legislation and delegated legislation. Often guidelines are provided for in the statute itself, and details are left to be worked out by the executive. The details may relate to the date on which the provisions of a statute may come into force, or the goods that have to be brought within the mischief of the statutory provision or exempted from its purview and so on. In many cases, as in the case of notifications involved in this case, the act itself may make provision for placing the notifications, rules, schemes or orders for legislative scrutiny. These are some of the safeguards normally provided to check abuse or arbitrariness on the part of the executive in exercise of delegated func - tions. The function of the executive in exercise of the functions so delegated is nothing but legislative in character and the notifications, regulations or orders issued in exercise of the powers delegated are law. As indicated above, a modern state undertakes enormous activities including social welfare measures in the interest of general public. This gives rise to ever increasing need for delegation of functions of legislature to the executive. As compared to statutes, the volume of delegated legislation both in "on"> england and "on"> "on"> india , has immensely increased and it has been well said that in mere bulk, the child now dwarfs the parent. The exercise of those delegated powers appears under different names such as rules, regulations, orders, notifications, directions, schemes, circulars, bye - laws etc. Since these subordinate legislations supplement a statute or exempt certain matters from its operations, though they are made by the executive they qualify to be termed as law. The long line of decisions of the supreme court referred to above would lead to the conclusion that power exercised by the executive by virtue of the conferment of the delegated authority by the statute is a legislative act and hence law within the meaning of s. 57 of the evidence act.
18. In the light of the principle enunciated in the above decisions of the supreme court, we do not find any difficulty in holding that the relevant notifications issued under s. 11 - b and s. 123 (2) of the customs act are legislative in character. It is in exercise of delegated powers, notifications are issued. S. 11 - b of the customs act lays down that having regard to the magnitude of the illegal imports of goods of any class or description, if the central government is satisfied that it is expedient in the public interest to take special measures for the purpose of checking the illegal import, circulation or disposal of such goods or facilitating the detention of such goods it may by notifications in the official gazette, specify goods of such class or description. Similarly under s. 123 of the customs act the parliament confers power on the central government to issue notifications including any class of goods within the mischief on s. 123 of the act which provides that where any goods to which that section applies are seized under the 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 seizure is made, and if any person, other than the person from whose possession the goods are seized, claims to be the owner thereof, also on such other person and in any other case on the person if any who claims to be the owner thereof. The issue of notifications in exercise of the powers so conferred is nothing but a legislative activity. It follows that the notifications in question are laws within the meaning of s. 57 of the evidence act and the court is bound to take judicial notice of these notifications. Learned magistrate was clearly in error in holding that the prosecution must fail for reason of non - production of the notifications. What the court has to do in a case where it is bound to take judicial notice has been explained by the full bench decision in executive officer v. P. Devassy , 1970 k. L. T. 991 in the following terms:
it is clear from s. 57 of the evidence act that in all cases where the court is bound to take judicial notice, the court may resort for its aid to appropriate books or documents of reference. There is thus a duty cast on the court to refer to the necessary documents for the purpose of taking judicial notice of something of which it is bound to take judicial notice. Therefore, if that were necessary, the court should have looked into the gazette or other book or document of reference for the purpose of ascertaining whether or not the law here in question had been brought into force. It is only where a document of reference for the purpose of deciding such a question is not readily available that the question of the court calling upon the party concerned to produce it would arise.
19. As pointed out by the full bench in the above decision the court should have looked into the gazette or other book or document for the purpose of ascertaining whether or not the alleged notifications had been issued. Of course if the court is not able to trace the notification, it is open to the court to call upon the person who requires the court to take judicial notice of the notification to produce the same and to refuse to take judicial notice unless and until such person produces any such book or document which contained the notification. This is provided for in s. 57 of the evidence act itself. In the instant case, sri. K. Prabhakaran , counsel for the appellant submitted that the book containing the notification was placed before the lower court the records do not disclose that the book containing the relevant notifications was produced in the court below. However, there is no allegation that the court could not trace the notifications from the gazette or the appellant was directed to produce the same or give number of the notification or the late of the gazette in which the notifications were published and he failed to do so, so as to enable the court to decline to take judicial notice of the notification. As mentioned earlier, the counsel for the appellant has produced the notifications along with a petition to accept the same as evidence. We find that several items taken into custody by the officers of the customs department are goods notified under ss. 11 - b and 123 (2) of the customs act in the circumstances it has to be held that the view taken by the lower court that the prosecution has to fail by reason of failure to prove the alleged notifications is not sustainable in law.
20. That takes us to the other contentions raised by the counsel for the respondent seeking to sustain the acquittal.
It was strenuously contended by the counsel for the respondents that the search was illegal and vitiated by reason of non - compliance with the mandatory provision contained in the customs act and the cr. P. C. The learned counsel invited our attention to s. 105 of the customs act and pointed out that it was only if the assistant collector of customs, or in any area adjoining the land frontier or the coast of india an officer of customs specifically empowered by name in this behalf by the board, has reason to believe that any goods liable to confiscation, or any documents or things which in his opinion will be useful for or relevant to any proceeding under this act are secreted in any place, he may authorise any officer of customs to search or may himself search for such goods, documents or things. In the instant case it was not the assistant collector who made the search. According to the learned counsel for the respondents, p. W. 2 who made the search has not been authorised by the assistant collector of customs clothing him with authority to make a search. The learned counsel for the appellant countered this argument by contending that there was an oral authorisation by the collector in this behalf. Alternatively, he contended that what was done by p. W. 2 was only an inspection, and not a search and therefore there was no violation of s. 105 of the customs act of course p. W. 1 in his evidence stated that he orally authorised p. W. 2 to make the search. It has not been explained why an order in writing authorising an officer to search could not be issued in this case. Having regard to the purpose for which the provision requiring authorisation is enacted and in order to prevent the abuse of power conferred by the section empowering search and to protect the interest of persons who are likely to be affected by the action, it has to be held that a written authorisation is necessary. It may also be noticed that sub - s.(2) of s. 105 provides that the provisions of the cr. P. C. Relating to searches shall, so for as may be, apply to searches under s. 10s subject to the modification that sub - s. (5) of s. 165 of the code shall have effect as if for the word magistrate wherever occurs the word collector of customs were substituted. S. 165 (3) of cr. P. C. Contemplates an order in writing specifying the place to be searched and so far as possible the thing for which search has to be made. In these circumstances, we conclude that there was no authorisation empowering either p. W. 2 or p. W. 3 to make a search in this case.
21. The learned counsel for the appellant ventured to meet these arguments based on the procedural irregularity and illegality in conducting the search by contending that even on the assumption that this was a case of search, and not an inspection and the search was irregular or illegal by reason of want of authorisation by the assistant collector it will not vitiate the seizure of the articles and the subsequent trial and in support of his contention, placed before us some authorities touching the point.
22. The supreme court had occasion to consider the effect of contravention of ss. 103 and 165, cr. P. C. In the decisions in radha krishna v. State of u. P. , a. I. R. 1963 s. C. 822. The supreme court while considering the question whether the illegality will vitiate the seizure of the articles, made the following observations:
5. So far as the alleged illegality of the search it is sufficicntly to say, that even assuming that the search was illegal, the seizure of the articles is not vitiated. It may be that where the provisions of ss. 103 and 165, code of criminal procedure are contravened the search could be resisted by the persons whose premises are sought to be searched. It may also be that because of the illegality of the search the court may be inclined to examine carefully the evidence regarding the seizure. But beyond these two consequences no further consequence ensues.
State of "on"> "on"> maharashtra v. Natwar lal damodar das , a. I. R. 1980 s. C. 593 was a case relating to offence under the customs act. Dealing with the questions of illegality it the seizure conducted, the supreme court made the following observations:
assuming arguendo , that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the customs authorities or the validity of the trial which followed on the compliant of the assistant collector of customs.
In the decision in dr. Pratap singh and another v. Director of enforcement, foreign exchange regulation and others, a. I. R. 1985 s. C. 989, the supreme court held that illegality of search does not vitiate the evidence collected and the only requirement is that the court or the authority before which such materials or evidence seized principally shown has to be cautious and circumspect in dealing with such evidence or material.
23. An identical question arose in the decision in the assistant collector of central excise v. Wilfred sebastain and others, 1982 k. L. J. 670, kader j. After noticing the decisions of the supreme court on the point made the following observations:
it is therefore now fairly settled that illegality of a search will not affect the validity of the seizure of the articles, or in any way vitiate the recovery of the articles and the subsequent trial. If the search was illegal it gives a good defence to the person whose house or premises was searched to resist the same and the court will have to examine carefully the evidence regarding seizure. If after such an examination the evidence regarding the seizure of the articles is found to be satisfactory and acceptable, it will not be in the interests of justice to ignore altogether that evidence, particularly in economic and anti - social crimes. Smuggling of foreign articles to "on"> "on"> india will no doubt affect the public primarily and the financial stability of the country. The expression acquired possession used in s. 135 of the act is of very wide amplitude and will include the acquisition of possession by a person in a capacity other than as owner or purchaser. As regards the application of s. 123, no doubt, the initial burden of proving that the accused acquired the contraband articles is cast on the prosecution. As already stated, the illegality of search by itself cannot and will not vitiate the seizure of the articles. If inspite of the fact that search was illegal, the evidence regarding seizure of the contraband articles is found to be acceptable, there is no reason why s. 125 of the act should not be invoked .
24. In the light of the broad principles enunciated by the supreme court in the above decisions, it has to be held that want of authorisation by the assistant collector will not vitiate the seizure or the subsequent steps taken by the officers against the respondents or the trial which followed.
25. It was next contended that s. 105 postulates that the assistant collector of customs should have reason to believe that any good liable to confiscation are secreted p. W. 2 stated that it was on the basis of the source information that search was made. S. 105 of the act does not require the reasons to be in writing, as is required by sub - s.(3) of s. 165, cr. P. C. In the case of search made under s. 165, cr. P. C. In this regard, the learned counsel pressed into service the provisions contained in sub - s. (2) of s. 105 which lay down that the provisions of the code of criminal procedure relating to search shall, as far as may be, apply to search under s. 105. May be that the provisions relating to search contained in the code are required to be generally followed in search conducted under s. 105. But there is difference in the wording in sub - s.(1) of s. 105 of the act and sub - s. (3) of s. 165, crl. P. C. While s. 105 of the act does not insist on reasons for belief to be stated in writing, s. 165 (1) , cr. P. C. Does insist on recording the grounds of belief in writing. Therefore it has to be held that, though presence of reasons for belief is a pre - requisite for a search under s. 105, the provision does hot require that ground to be recorded in writing.
26. The learned counsel for the appellant has an alternate contention that it was only a case of inspection as contemplated under s. 106 - a of the customs act in view of the express mentions about the search in the complaint and the evidence of p. Ws. 1 to 3 it has to e held that what was done by p. W. 2 was not a mere inspection as contemplated under s. 106 - a but was a search. But in the view we have taken that illegality committed in the matter of search will not vitiate the subsequent actions taken by the officers, and the trial the prosecution cannot fail for the reason of the illegality in the search.
27. The next question that has to be considered is whether the goods were goods notified under. S. 11 - b and 123 (2) of the customs act. On a perusal of the mahazars exts. P. 2 and p. 4 and the articles seized thereunder we find that most of the articles are good notified under s. 11 - b and 123 (3) of the act.
28. Learned counsel for the respondents however raised two contentions on this aspect. The first contention is that there is no evidence to show that these goods were imported goods. The second contention is that markings on the goods cannot be relied as proof of goods being imported goods. The respondents themselves did not dispute that the articles were imported goods; but they only raised the contention that they were brought into "on"> "on"> india after payment of duty and that some of the goods were for their household use. There are altogether 36 items. A perusal of the mahazars under which those articles were taken into custody convince us that it is not at all probable that these items were intended for household use. There were 55 recorded cassettes, 11 unrecorded cassettes, 19 hero - pens, 47 pieces of shirting measuring 621 metres and 35 pieces of children s dresses. It is inconceivable that these items were imported for use as household articles. P. Ws. 2 and 3 stated that the accused were not in possession of any document to show that duty was paid in respect of these items. No such records were produced in court.
29. The second accused gave ext p. 3 statement before the officers in which she stated that the radio cassette - recorder was brought by her brother muraleedharan and the other goods were brought by several persons on different occasions, and they were kept in the shop for sale on a small margin of profit and she was not aware that the stocking of these good in the shop was an offence. Similarly, the father of the second accused made ext. P. 5 statement before the superintendent of customs in which he stated that he was working as a manager in sandhya textiles belonging to this son - in - law vasan - thakumar and the customs officer made a search in the premises of ulloor enterprises run by his son - in - law ad his daughter sasikala and also the residential house where he and her daughter were living and the imported good were seized from the aforesaid shop and the residential house and he was present in the shop as well as in the residence and had signed the mahazar. He also stated in the said statement that the imported goods seized belonged to his son - in - law vasanthakumar and were stored for the purpose of retail sale in ulloor enterprises under the control of his son - in - law. Exts. P. 3 and p. 5 statements are admissible under s. 108 of the customs act. The evidence of p. Ws. 2 and 3 clearly shows that p. W. 2 seized the goods mentioned in exts. P. 2 and p. 4 mahazars and those articles are imported goods. They also proved exts. P. 2 and p. 4 mahazars as well as the statements exts. P. 3 and p. 5 given by the 2nd respondent and also p. W. 4 the father of the 2nd respondent and father - in - law of the 1st respondent. S. 123 of the customs act clearly lays down that where any goods to which the section applies are seized under the act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be in a case where such seizure is made from the possession of any person, on the person from whose possession the goods were seized; and 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 and in any other case, on the person, if any, who claims to be the owner of the goods so seized. In the circumstances the burden is on respondents 1 and 2 to show that they are not smuggled goods. They have not discharged the burden cast upon them under s. 125 of the act.
30. There are markings on several items seized indicating that they were of foreign origin. The learned counsel for the respondents however argued that markings cannot be considered sufficient proof of foreign origin. In support of his contention that the markings are not sufficient proof of the fact that the goods are of foreign origin the counsel strongly relied on the decisions of the gujarat high court in assistant collector of customs, baroda v. M. Ibrahim pirjada , 1970 crl. L. J. 1305, union of india v. Abdulkader abdulgani and others, 1985 crl. L. J. 324; as well as the decision of the privy council in comptroller of customs v. E. Western electric co. Ltd. , 1966 a. C. 367 which took the view that marking on the goods cannot be taken as proof of foreign origin. However, the supreme court in balumal jamnadas v. State of "on"> maharashtra , a. I. R. 1975 s. C. 2083 and state of "on"> "on"> maharastra v. Natwarlal , a. I. R. 1980 s. C. 593 relied on markings on the goods as circumstance to infer that the goods are imported. This court in the decision in venugopalan v. Unnikutty panicker and others, 1977 k. L. T. 1009 also took the view that the marking can be taken as evidence in considering the question whether the goods in question are imported. Sadasivan. J. In asst. Collector of customs v. Pratap rao sait , 1972 k. L. T. 307 held that it would be unwise from the markings alone to draw the conclusion that the article is of foreign origin. In view of the supreme court decisions referred to above, there cannot be any doubt that marking can be taken as circumstance to infer that the goods were of foreign origin.
31. There are other pieces of evidence in this case which we have already referred to, to show that the goods seized were of foreign origin. As indicated earlier the respondents had no case that the articles seized were not of foreign origin. As indicated earlier, their contention was that one item was brought by the brother of the 2nd respondent, some other items were brought from "on"> "on"> mali after payment of duty, some items were purchased for sale and the remaining items were goods used in the house. The goods were stored in the business premises of accused 1 and 2 and in the house where accused 1 and 2 are residing and form the statements exts. P. 3 and p. 5 it is clear that those articles were kept by the respondents for sale. In these circumstances, it has to be held that both the accused are guilty of offence punishable under s. 135 of the customs act and accordingly we convict them thereunder. The market price of the articles seized is less than rs. 1,00,000. Taking into account all the circumstances of the case, we feel that a sentence of a fine of rs. 3,000 on each of the respondents will meet the ends of justice. We therefore sentence each of the accused to pay a fine of rs. 3,000 and in default to undergo simple imprisonment for one month.
32. In the result, the crl. Appeal is allowed and the order of acquittal is set aside and the respondents are convicted and sentenced as stated above.
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