# AMBA LAL v. THE UNION OF INDIA AND OTHERS - **Citation:** [1961] 1 S.C.R. 933 - **Court:** Supreme Court of India - **Decided:** 1961 - **Bench:** B. P. Sinha, J. L. Kapur, P. B. Gajendragadkar, K. SuBBA RAo, K. N. Wanchoo - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/amba-lal-v-the-union-of-india-and-others-2187 - **Pages:** 11 ## Headnote Evidence-Customs authorities recovering articles suspected to have been smuggled-Accused pleading articles brought from Pakistan at time of partition-Burden of proof-Imports Exports Control Act, I947 (IO of z947), s. 3-Sea Customs Act, z878 (8 of z878), ss. z9, z67(8) and z78-A-Land Customs Act, z924 (Ig of z924), ss. 5 and 7-Indian Evidence Act, z872 (r of r872), s. ro6. II9 October 3. v. v.·he U11irJ11 "f India ~'..;.. .Otlu:r_{ 934 SDPRE:IIE COt.:HT REPORTS [1961) T'1e appellants house was searched on June 22, 1951, by the (us toms authorities and ttn articles v.·ere recovered therefrom. Jn the inquiry before the Collector the appellant stated that the lirst five articles had been brought by him in 1947 from Pakistan after partition and that with respect 10 thr othrr fi\·earticles he was a bona fide purchaser tllt'reof. The CQIJector held that the appellant had failed to establish his case and held that the goods were imported into India in contravention of s. 3, Import Export Control Act read with ss. 19 and 167(8). Sea Customs Act ancl ss. 4 and 5 Land Customs Act read with s. 7 thereof. This decision was upheld on appral by the Central Board of RC\·enue and by the Central Government on revision. The appellant contended that: (1) the onus of proving that the first five articles were smuggled goods was on the department which it hacl fai!ecl to discharge, anti (2) C\·en if the other five articles which he purchased were smuggled goods he was not concerned with their importation. Held, that the onus was on the authorities to establish that the fust five articles were imported into India after ~larch 1948, when the customs barrier was put up for the first time between India and Pakistan, and that the authorities having !ailed to adduce any evidence to prove this fact the appellant coulrl not be held guilty of any of the offences charged. The onus did not shift by virtue of s. i 78A, Sea Customs Act or s. 5, Land Customs Act, as the former section was not in operation at the relevant time and the latter section was not applicable to the facts of this case; nor did the onus shift by virtue of s. ro6, Evidence Act, as that section could not be used to undermine the well established rule that the burden was on the prosecution arid never shifted. · Shamb11 Nath Mehra v. The Stale of Ajm Collector of Central Excise .held that the appellant had failed to establish that items l to 5 bad been brought by him to India in the year 1947 and be also did not accept the plea of the appellant in regard to items 6 to IO that he was a bona fide purchaser of them. I u the result he held that all the goods were imported into India in contravention of, (i) s. 3 of the Import Export Control Act read with ss. 19 and 167(8) of the Sea. CuAtoms Act, (ii) ss. 4 a.nd 5 of the Land Customs Act read with s. 7 thereof. He made au order of confiscation of the said articles under s. 167(8) of the Sea CustomA Act and s. 7 of the Land Customs Act; but under s. 183 of the Sea Customs Act he gave him an option to redeem the confiscated goods within four months of the date of the order on payment of a sum of Rs. 25,000. In addition ho imposed a pe11a.lty of Rs. l,000 a.nd directed the payment of import duty leviable on a.II the items together with other charges before the goods were taken out of custom" control. Aggrieved by the said order, the appellant preferred an appeal to the Central Boa.rd of Reveuue. The Centre.I Board of Revenue agreed with the Collector of Central Excise that the onus of proving the import of the goods in question was on the appellant. In regard to items I to 5, it rejected the plea of the appellant mainly on the ha.sis of a statemrnt. allPged to have been me.de by him at the time of seizure of the said articles. In the result the t\ppeal was dismissed. The revision filed by the appellant to the Central Government was also dismissed on August 28, 1953. Thereafter the appellant filed a writ petition under Art. 226 of the Constituticn in the High Court t ' ., 1 S.C.R. SUPREME COURT REPORTS 937 of Punjab but it was dismissed by a division bench of the High Court on November 3, 1954. Hence this appeal. It would be convenient to deal with this appeal in two parts-one in regard to items 1 to 5 and the other in regard to items 6 to 10. The decision in regard to items 1 to 5 turns purely on the question of onus. The Collector of Central Excise as well as the Central Board of Revenue held that the onus of proving the import of the goods lay on the appellant. There is no evidence adduced by the customs authorities to establish the offrnce of the appellant, namely, that the goods were smuggled into India after the raising of the customs barrier against Pakistan in March 1948. So too, on the part of the appellant, except his statement made at the time of seizme of the goods and also at the time of the inquiry that he brought them with him into India in 1947, no other acceptable evidence has been adduced. In the circumstances, the question of onus of proof becomes very important and the decision turns upon the question on whom the bmden of proof lies. This Court has held that a customs officer is not a judicial tribunal and that a proceeding before him is not a proseeution. But it cannot be denied that the relevant provisions of the Sea Customs Act and the Land Gus toms Act are penal in character. The ~ppro priate customs authority is empowered to make an inquiry in respect of an offence alleged to have been committed by a person under the said Acts, summon and examine witnesses, decide whether an offence is committed, make an order of confiscation of the goods in respect of which the offence is committed and impose penalty on 1 he person concerned; see ss. 168 and l 71A of the Sea Customs Act and ss. 5 and 7 of the Land Customs Act. To such a, situation, though the provisions of tbe Cude of Ctiminal Procedure or the Evidence Act may not apply except in so far as they are statutorily made applicable, the fundamental principles of criminal jurisprudence and of natural justice must necessarily apply. If so, the burden of proof is on the customs authorit.h.'s and they have to A111ba Lal v. The Union of India & Otl~e'' Subba Rao J. ' A111ba Lal v. The C.: nion of l11dia & Others Subba Rao ]. 938 SUPREME COURT H.EPORTS [1961] bring liome the guilt to tho person alleged to have c.ommitted a particular·offence under the said Acts by adducing srtisfactory evidence. I1\ t.he present case no siwh evidence is forthcoming; indeed there is no tjttle of evidence to prove the case bf. .the' customs authorities. But it is said that the onus shifted to ·the appellant for three reasons, namely, (i) by reason of the provisiops of s. l 78A of the Sea Customs Act; (ii) by reasoi:I of s. 5·of the Land Customs Act; aud (iii) by reason of s. 106 of the Evid(lnce Act. Section l 78A of the Sea Customs Act does 11ot govern the present case, for that section was insurted in that Act by Act No. XXI of 1955 ~·hcreas the order of confiscation of the goods in question was made on January 18, IQ52. The section is prospe9tivo in operation and "Cannot govern the said order. Nor aoes s. 5 of the Land Customs Act apply to the present case. .Under s. 5(1) of the said Act, "Every person desiring to pass any goods ......... by land, out of or into any foreign territory shall apply in writing ...... for a pe.rmit for the passage thereof, to , the Land Customs Gfficer iJ1charge of a land customs Station .. : ....... " By sub-s. (2) ofs. 5 oft-he said Act, if the requisite duty has been paid or the goods have been found by the Land Customs Officer {o be free of duty, the Land Custo)Us Officer is om powered lo grant a. pe1·mit. Under sub-s. (3) thereof, "Any- La11d Custum8 Officer, duly empowered by the Chief Customs · authority in .this behalf, .aj'a:y require any person in charge of any goods w hfoh slich Ofticcr has reason to believe to J;iave been imported, or to be about to bo exported, by land from, or to, any foreign -territory to produce. the permit granted for such goods; and ·any such goods which are dutiable a.nd which a,re unaccompanied by a permit or do not correspond with the specification containrd in the permit produced, shall be detained and shail be liable to confiscation." This section has no bearing on the question of onus of proof., This ~ection obviously. applies to a ciise where a permit is required f•>r importing goods by land from a foreign onnntry into T ndia and it empowers the Land Cus_toms Officer, \'·bo has-reason to .believe that any , I ., 1 S.C.R. SUPREME COURT REPORTS 939 goods have been imported by land from any foreign territory, to demaud the permit and .to verify whe~her the goods so imported correspond with the specification contained in the permit. If there was no permit, or if the goods did not correspond with the specificat.ion cont.ained in the permit, the said goods would be liable to be detained and confiscated. The applica. tion of this section is conditioned by the legal requirement to obtain a permit. If no permit is necessary to import goods into India, the provisions of the section cannot be attracted. In the present case the customs barrier was established only i11 March, 1948, that is, after the said items of goods are stated by the appellant to have been brought into India. We cannot also accept the contention that by reason of the provisions of s. 106 of the Evidence Act the onus lies on the appellant to prove that he brought the said items of goods into India in 194 7. Section 106 of the Evidence Act in terms does not apply to a proceeding under the said Acts. But it may be assumed that the principle underlying the said section is of uriiversal application. Under that section, when any faot is especially within the knowledge of any person, the burden of.proving that fact is upon him. This Court in Shambu Nath 1lf ehra v. The State of A jmer (' ), after considering the earlier Privy Council decisions on the interpretation of s. 106 of the Evidence Act, observed at p. 204 thus: "The section cannot be used to undermine the . well established rule of law that, save in a very exceptional class of case, the burden is on the prosecution and never shifts." If s. 106 of the Evidence Act is applied, then, by analogy, the fundamental principles of criminal jurisprudence must equally be invoked. If so, it follows that the onus to prove the case against the appellant is on the customs authorities and they failed to discharge that burden in respect of items 1 to 5. The order of confiscation relating to items 1 to 5 is set aside. Before closing this aspect of the case, some observations have to 'be made in respect of the manuer.iu (1) [1956] S.C.R. 199. Amba La! v. The Union.of India c;,. Others Subbn Rao ]. 1960 Amb:z Lal v. The f'11i:-o;z of lndia 6- Otht.,, !!40 SUPRE!IIE COURT REPORTS [1961] which the statelllent given by the appellant when the goods were seized was u~ed against him by the custoDJs authorities. It \1 ould J,.., seen from tlui ordor of the Collector of c .. ntral Exc·ise a~ WC'l11is that. of the Central Board of He,·enuP t ha! they had relied upon tho statement alleged to haro been ·D!ade by him ;it t.he time the search was made in his house in order to reject his case that he brought. somH of the items of goods into India. in the year 1947. The app1>!11rnt. in his reply to the show-cause notice complained that his statement was taken in English, that he did not know what was recorded and that his application for inspection and for the grant of a copy of his statement was not granted to him. It does not appear from the records that he was given a copy of t!rn statement or that he was allowed to inspect the same. In the circumstanceH we must point out that the customs authorities wero not justified to rely upon certain alkged discrepancies in that statement to rejc•ct the appellant's- subsequent \'ersion. If they wanted to rely upon it they should have given an opportunity to the appellant to inspect it and, at any rate, should have supplied him a copy thHreof. Coming to items 6 to IO, we ha.Ye no reason to reject, a• we have been ll.sked to do, the Hta.tement made in the order of the Collector of Central Excise dated Oct.ober 27, 1951, that the appellant accepted that items 6 to 10 were smuggled goods from Pakistan. [t would have been better if the customs authorities had taken that admission in writing from the appellant, for that would prevent the rotract.ion of the concession on scicond thoughts. That a.part, it is more satisfactory if a body entrusted with functions such u.s the customs authoritieH a.re entrusted with takes that precaution when its decision is mainly to depend upon such admission. But in this case, having r<'gard to the circumst1rnces under, and the manner in, which the said concession was made, wo have no reason t-0 doubt the correctness of the statements of fact. in regard to this matter made in the orders ?f ~he customs authoritif's. If so, it follows that the fmdmg of the customs authorities that the appellant purchased the said items, which were smuggled goods, should , ,. I. S.C.R.' SUPREME COURT REPORTS 941 prevail. The order of confiscation of these five items will, therefore, stand. Even so, it is contended by the learned counsel for the appellant that the customs authorities went wrong in imposing a pennlty on him under s. 167(8) of the Sea Customs Act. The said section reH.ds : "If nny goods, the importation or exportation of which is for the time being prohibited or restricted by or under Clrnpter IV of this Act, be imported into or exported from lndin contrary to such prohibition or restriction ............ such goods shall be liable to confiscation; ·and any person concerned in any such offence shall be liable to a penalty not exceeding three times the value of the goods, or not exceeding one thousand rupees." The :tppellant's argument is that though he purchased the said smuggled goods he is not concerned with the importation of the goods contrary to the prohibition or restriction imposed by or under Ch. IV cif the Sea Customs Act. The offence consists in importing the goods contrary to the prohibition and, therefore, the argument proceeds, a person, who has purchased them only after they were imported, is not hit by the said sect.ion. There is some force in this argument, but we do not propose to ex press our final view on the matter as the appellant is liable to the pennlty under s. 7(l)(c) of the Land Cuotoms Act, 1924. The said sect.ion reads : " Section 7 (I) : Any person who- ·································································· (c) aids in so passing or conveying any goods, or, knowing that any goods have been so passed or conveyed, keeps or conceals such goods or permits or procures them to be kept or concealed, shall be liable to a penalty not exceeding, where the goods are not dutiable, fifty or, where the goods or any of them are