1. This is an appeal against acquittal. The case of the prosecution was that the respondent was dealing with textile fabrics and nail cutters of foreign origin which had been smuggled into India. The respondent was the owner and driver of the truck which was carrying the goods in question when they were seized by the Police at the material time.
2. It can hardly be disputed that, if S. 123 of the Indian Customs Act, 1962, hereinafter referred to as “the Act” is not attracted, the prosecution had not discharged the burden of proving the guilt of the respondent.
3. Therefore, the short question before me is whether Section 123 is attracted in the present case and whether the burden lies on the respondent/defendant to prove that the goods in question were not smuggled goods.
4. The goods were seized from the petitioner by the police. The accused and the goods seized were taken to the Police Station and a panchanama was prepared. Thereafter the goods were handed over by the Police to the Customs Authority. It is evident that the seizure of the goods was not made by the Customs Authority. The expression “seize” was defined by the Supreme Court in ‘Gian Chand v. State of Punjab’, AIR 1962 SC 496, in the context in which it is used in the Act. That word was stated to mean the taking of possession, contrary to the wishes of the owner of the property. It cannot be denied that in the instant case, as far as the Police was concerned, there was a seizure of the goods from the accused/respondent, but as far the Customs Authorities were concerned, the goods were received and not seized by them, because they were willingly parted with by the Police, who by that time had the Custody of the goods, to the Customs Authorities. There was therefore no seizure of goods, with in the meaning of S. 123 in the present case. Besides, the seizure must be with the reasonable belief that they are smuggled goods. There is nothing on record to show that the goods were seized by the Police in the reasonable belief that they were smuggled goods. For all we know the police might have seized the goods under the bona fide belief that goods were smuggled goods. For these two reasons it is not possible to apply the provisions of S. 123(1) of the Act to the present case and shift the burden of proof to the respondent to prove his innocence.
5. The defence of the accused was that he was engaged to carry on the goods in question by his truck on payment of Rs. 30/-. He alleges that the goods were packed and that he did not know what the goods were. The prosecution has failed to place on record material on which it could be said that the respondent had knowledge of what the goods were or that he had the knowledge that the goods were smuggled or that the explanation given by him was not correct.
6. It is argued by Shri Dias, learned Govt. Advocate that in ‘Balumal Jamnadas Batra v. State Of Maharashtra ’, (1975) 4 SCC 645 : AIR 1975 SC 2083, the seizure was made by the Police and yet the burden was cast on the accused to prove that the goods were not smuggled. What was decided in Balumal's case ((1975) 4 SCC 645 : AIR 1975 SC 2083) was not that a seizure made by the Police was a seizure within the meaning of S. 123 of the Act. The question raised there was that even if the provisions of S. 123 were not applicable, a presumption under S. 106 read with Sec. 114 of the Evidence Act was sufficient to enable the prosecution to ask the Court to presume that the appellant knew that the goods had been smuggled or imported in contravention of the law. Such presumption could be raised in Balumal's case, but not in the present one. In that case the goods were found to be in a room of which the lock was with the accused. When the accused was asked to produce the key of the room, he stated that he did not have the key of the room and denied having possession of the goods. Later on, he produced one of the two Godrej lock keys from a side pocket of the trouser that he was wearing. On opening of the room, eleven wooden boxes covered with jute cloth and secured by iron strips were found. On opening them, six of them were found to contain cigarette lighters of “Imco Triplex Junior” brand, “Made in Austria.” Each of the six boxes were tightly packed with 1,200 lighters. The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the following writing: “Tego Lighter Flints of Superior Quality made in Germany.” On the wooden boxes containing the lighters were found written, “Dubai” and “Made in Austria.” The five; boxes containing flints had the words “Dubai” and “Made in West Germany” inscribed on them. A panchanama was prepared before panchas. A rent receipt in the name of the accused in respect of room 10 in the house, a portion of which room was occupied by the accused and wherein the goods were found, as well as a bill for consumption of electricity were seized from the custody of the accused together with a Godrej lock and the keys produced by him. In Balumal's case the accused had an opportunity to explain how and why the goods were in his custody. He made a bald denial that the goods were in his custody and thereby failed to avail of the opportunity of explaining satisfactorily the custody of those goods, which from their description, were clearly smuggled goods. In the present case the explanation given is plausible and satisfactory. The presumption of S. 106 read with S. 114 of the Evidence Act does not arise.
7. This is an appeal from an order of acquittal. There is no doubt that my powers to re-assess the evidence and reach my own conclusions are as extensive as those which this Court would have in an appeal against conviction. As a rule, of prudence however, I have to give weightage to the views of the trial Judge as to the credibility of the witnesses; to the presumption of innocence in favour of the accused, which was strengthened by the fact that he has been acquitted at the trial. The right of the accused to the benefit of any doubt should be given to him and the general slowness on the part of the appellate courts in disturbing the finding of facts arrived at by a Judge, who had the advantage of watching the demeanour of witnesses, must also be borne in mind.
8. In the circumstances, the appeal is dismissed.
9. Appeal dismissed.