# BALUMALJ~MNADASBATRA v. STAIB OF MAHARASHTRA

- **Citation:** [1976] 1 S.C.R. 539
- **Court:** Supreme Court of India
- **Decided:** 1975-08-29
- **Case number:** Criminal Appeal No. 74 of 1971
- **Bench:** M. H. Beg, P. N. Bhagwati, R. S. Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balumalj-mnadasbatra-v-staib-of-maharashtra-6628
- **Pages:** 5

## Headnote

539
Custo1ns Act, 1962, Section 123, sub-sections (l) and (2)-Seizure of smuggled goods prior to rtotification under sub-section (2)-Presurnption under subsectj_on ( 1 ), if could be applied subsequent td; notification to ihe goods seized.
Section 123(1) of the Customs Act, 1962, provided that, 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 sn1uggled
goods shall be on the person from whos-e possession the goods were seized.
On 21-4-1967, Police Officers of the Anti-Corruption and Prohibition Bureau,
Greater Bombay, acting on information received, had searched room no. 10
at 56, Sheriff Devji Street, Bombay. This room was divided by partitions into
three parts..
In the ·central portion, the police found the appellant and
three
other persons.
This portion -was again sub...divided with a locked connecting
door fixed in the passage to the sub-divided part. This was opened by one of
the two Godrej lock key~_ produce4 by the appellant from a side pocket of his
trousers.
Eleven wooden boxes covered with jute cloth and secured by iron
strips were found there. On opening them, six of them were found to contain
.::igarette lighters of "Imco Triplex Junior" brand "Made in Austria''.
Each
Jf the six boxes were tightly packed with 1200 lighters. The rernaining five
boxes contained fifty sealed tins of flints for cigarette li~hters which bore the
following writing : ''Tego Lighter Flints of Superior Quality 1'1ade in Germany"
inscribed on them.
A panchnama was prepared before
Panchas.
A ·rent
receipt in the name of the ap~Jlant in respect of room No. 10, in this house, of
which a portion was occupied by the appellant, and a bill for the cOnsumption
of electricity were also seized from the custody of the appellant together with the
Godrej lock and the keys produced by the appelJant. On 30th October, 1968,
the Assistant Collector of' Central Excise, Marine and
Prevention Division,
Bombay, filed a complaint alleging. that the appellant had committed offences
ounishable under Section 135(a) and (b) of the Customs Act.
The appellant
had denied being in possession of the offending goods although he had admitted
the production· of keys from his ,possession. The trying Presidency ~fagistrate
convicted him under section 135(b)(ii) of the Customs Act. 1962 and sentenced
him to six months rigorous imprisonment and a fine of Rs. 2,000/~, and, in default, to three months further rigorous imprisonment. The High Court dismissed
his appeal. . This appeal has been preferred on the basis of the special leave
granted by this Court.
Tt was coniended for the appellant that: (i) the presumption contained in
s.123 ( 1) of the Act would not place the onus- of proving innocent possession
of the goods in question upon the appellant; and. (ii) the goods in respect of
which the appel1ant was prosecuted were not .seiz.ed under the Act.
Reje::ting the contentions and. dismissing the appeal. the court
HELD: (i)
Though lighters and flints were notified provided in Section
123(2), in the Official Gazette of 26-8-1%7 the provisions of Section 123(1)
which only lay down a procedural rule, collld be applied
when · the
case.
came up for tri~l before the Presidency Magistrate. He divided it on 15-7-1969.
The complaint itself was filed on 30-10-1968.
It i's immaterial that the appel~
!ant was found in possession of the goods on 21-4-1967. [542·B-C]
(ii) !h~ verv appearance of the goods and the manner in which they were
packed rnd1cated that they were newly manufactured and brought into
this
co~~try very recently from another country. The inscriptions on then1 and
wnting on the boxes were part~ of the state in wh.ich t]i~ goods in unopened
boxes were found from which inferences about their origin and r~cent import
5 40
SUPREME COURT REPORTS
[1976] 1 S.C.R.
could arise.
The appellant's conduct, including his untruthful denial of their
possession, indicated consc

## Text

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BALUMALJ~MNADASBATRA
v.
STAIB OF MAHARASHTRA
August 29, 1975
[M. H. BEG, P. N. BHAGWATI AND R. S. SARKARIA, JJ.]
539
Custo1ns Act, 1962, Section 123, sub-sections (l) and (2)-Seizure of smuggled goods prior to rtotification under sub-section (2)-Presurnption under subsectj_on ( 1 ), if could be applied subsequent td; notification to ihe goods seized.
Section 123(1) of the Customs Act, 1962, provided that, 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 sn1uggled
goods shall be on the person from whos-e possession the goods were seized.
On 21-4-1967, Police Officers of the Anti-Corruption and Prohibition Bureau,
Greater Bombay, acting on information received, had searched room no. 10
at 56, Sheriff Devji Street, Bombay. This room was divided by partitions into
three parts..
In the ·central portion, the police found the appellant and
three
other persons.
This portion -was again sub...divided with a locked connecting
door fixed in the passage to the sub-divided part. This was opened by one of
the two Godrej lock key~_ produce4 by the appellant from a side pocket of his
trousers.
Eleven wooden boxes covered with jute cloth and secured by iron
strips were found there. On opening them, six of them were found to contain
.::igarette lighters of "Imco Triplex Junior" brand "Made in Austria''.
Each
Jf the six boxes were tightly packed with 1200 lighters. The rernaining five
boxes contained fifty sealed tins of flints for cigarette li~hters which bore the
following writing : ''Tego Lighter Flints of Superior Quality 1'1ade in Germany"
inscribed on them.
A panchnama was prepared before
Panchas.
A ·rent
receipt in the name of the ap~Jlant in respect of room No. 10, in this house, of
which a portion was occupied by the appellant, and a bill for the cOnsumption
of electricity were also seized from the custody of the appellant together with the
Godrej lock and the keys produced by the appelJant. On 30th October, 1968,
the Assistant Collector of' Central Excise, Marine and
Prevention Division,
Bombay, filed a complaint alleging. that the appellant had committed offences
ounishable under Section 135(a) and (b) of the Customs Act.
The appellant
had denied being in possession of the offending goods although he had admitted
the production· of keys from his ,possession. The trying Presidency ~fagistrate
convicted him under section 135(b)(ii) of the Customs Act. 1962 and sentenced
him to six months rigorous imprisonment and a fine of Rs. 2,000/~, and, in default, to three months further rigorous imprisonment. The High Court dismissed
his appeal. . This appeal has been preferred on the basis of the special leave
granted by this Court.
Tt was coniended for the appellant that: (i) the presumption contained in
s.123 ( 1) of the Act would not place the onus- of proving innocent possession
of the goods in question upon the appellant; and. (ii) the goods in respect of
which the appel1ant was prosecuted were not .seiz.ed under the Act.
Reje::ting the contentions and. dismissing the appeal. the court
HELD: (i)
Though lighters and flints were notified provided in Section
123(2), in the Official Gazette of 26-8-1%7 the provisions of Section 123(1)
which only lay down a procedural rule, collld be applied
when · the
case.
came up for tri~l before the Presidency Magistrate. He divided it on 15-7-1969.
The complaint itself was filed on 30-10-1968.
It i's immaterial that the appel~
!ant was found in possession of the goods on 21-4-1967. [542·B-C]
(ii) !h~ verv appearance of the goods and the manner in which they were
packed rnd1cated that they were newly manufactured and brought into
this
co~~try very recently from another country. The inscriptions on then1 and
wnting on the boxes were part~ of the state in wh.ich t]i~ goods in unopened
boxes were found from which inferences about their origin and r~cent import
5 40
SUPREME COURT REPORTS
[1976] 1 S.C.R.
could arise.
The appellant's conduct, including his untruthful denial of their
possession, indicated consciousness of their smugglied character or 1nens rea.
There was some evidence· to enable the courts to come to the conclusion that the
goods must have' been known to the appellant to be smuggled even if he was not
a party to a fraudulent evasion of duty.
[543 B-D]
Gian ChCJnd & Ors. v. The State of Punjab, [19621 Suppl. 1 S.C.R. 364,
Collector oj Customs, Madras & Ors. v. D. Bhoonnurt A.I.R. 1974 S.C. 859,
M/~. Kanungo & Co. v. The Cdllector of Custo111.9, Calcutta & Ors. A.I.R. (972
S.C. 2136, lssardas Daulat Ra.m & Ors. v. The Union of India & Ors. [1962]
Supp]. I S.C.R. 358, Gopa/ Shcorey v. The State of Bombay [19591 S.C.R. 919
and The State of Punjob v. Gian Chand & Ors. Criminal A·ppeal No. 195
of
1962---<lecided by this Court on 2A-1968, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 74 of
1971.
Appeal by Special Leave from the Judgment and Order dated the
25th January 1972 of the Bombay High Court in Criminal Appeal
1025 of 1959.
N. H. Hingoorani and Mrs, K, Hingoorani for the Appellant.
S. B. Wad and M. N. Shroff for the Respondent.
The Judgment of the Court was delivered by
BEG, J.-The appelJant before us by special leave to appeal was
convicted under Section 135(b) (ii) of the Customs Act, 1962 (hereinafter referred to as 'the Act'), and sentenced to six months rigorous
imprisonment and a fine of Rs. 2,0CYJ/-, and, in default, to three
months further rigorous imprisonment.
Goods in respect of which
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this offence was found to have been committed were also confiscated.
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On 21-4-1967, Police Officers of the Anti-Corruption and Prohibition Bureau, Greater Bombay, acting on information received, had
searched room No. 10 at 56, Sheriff Deo.ii Street, Bombay.
This
room was divideld by partitions into three parts.
In the central portion
the police found the appellant and three other persons.
This portion
was again sub-divided with a locked connecting door fixed in the pasF
sage to the sub-divided part. This was opened by one of the two
Godrej lock keys produced by the appellant from a si\:!e pocket of his
trousers.
Eleven wooden boxes covered with jute cloth and secured
by iron strips were found there. 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
1200 lighters.
The remaining five boxes contained fifty sealed tins
G
of flints for cigarettee lighters which bore the following writing : "Tcgo
Lighter Flints of Superior Quality Made in Germany".
On the
wooden boxes containin~ 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 pan·
chnama was prepared before Panchas.
A rent receipt in the name of
'
the appellant in respect of room No. 10, in this house, of which a porH
lion was occupied by the appellant, and a bill for the consumption of
electricity were also seized from the custody of ):he appellant together
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BALUMAL V, MAHARASHTRA (Beg, J.)
541
with th~ Godrej lock and the keys produced by the appellant.
Subsequei;tly, the seized articles were made over to the inspector of Central
ExcJSe and Customs, Marine and Prevention Division, Bombay,
on
24-4-1967, nuder Sectmn 110 of the Customs Act.
The v.alue of 7200 sigarette lighters was stated as Rs. 14,400/- and
of 250 tins of flints as Rs. 15,000/- on which Customs duty of
Rs. 15,840/- and Rs. 10,~00/- respectively was alleged to be payable.
In the complaint filed on 30th October, 1968, by the Assistant Collector of Central Excise, Marine and Prevention Division, Bombay, it is
alleged that the cigarette lighters and flints were imported into India
without an import licence and in contravention of provisions of
Government of India, Ministry of Commerce &
Industry,
Import
Control Oilier No.17/55 dated 7-12-1955 (as amended) issued under
Section 3 (2) of the Import & Export (Control) Act, 1947, which was
to be deemed to be an order passed under Section 11 of the Act. It
was submitted that the accused, having been concerned in a fraudulent evasion of payment of Rs. 26,340/- as customs duty to the
Government, had committed offences punishable under Section 135 (a)
and ( b) of the Act.
The goods were also, as a necessary consequence, said to be liable to confiscation under Section 111 (d) of the
Act.
The appellant had denied being in possession of the offending
goods although he had admitted th!' production of keys from his possession.
He alJeged that the oortion of the room from
which
th~
2oods were recovered was sublet to Dwarumal and Kishen who had
kept the goods there. The appellant's explanation had been disbelieved by the trying Magistrate as well as by the High Court.
The
production of the key which, according to the prosecution evidence,
the appellant had at first refused to produce, proved that the portion
in which the boxes were kept was in appellant's exclusive possession
with all that was contained ·in it. It is oossible that he may have sublet other portions of the partitioned room to other persons, but there
is no reason to doubt that the appellant was not only in oossession of
the boxes but knew something about the incriminating nature of their
contents.
Otherwise, why should he, at first, have refused to produce
the key he had ? Furthermore, the appellant had not given any evidence to show that his sub-tenants had placed the boxes there, or that
there was any reason why he should allow them to use the portion
reserved by him for himself. His case rested on his bare assertions in
a written statement.
Of course, no one had come forward to state or
allege that the goods found, in the circumstarices stated above, had
been imported without payment of duty.
The only question argued
before us was whether the presumption contained in Section 123 of the
Act, corresponding to Section 128(A) of the Sea Customs Act, 1878,
or any other provision of law would place the onus of proving innocent possession of these goods upon the appellant.
Section 123 of the
Act reads as follows :
"123. Burden of proof in certain cases.---
( 1) . Where any goods to which thi~ section app~ies are
seized under this Act in the reasonable belief that
542
SUPREME COURT REPORTS
[1976] 1 s.c.R.
t!J,ey are smuggled goods, the burdeu of proving that
they are not smuggled goods shall be on th.e person
from whose possession the goods were seized.
(2) This section shall apply to gold, diamonds,
manufacturers of gold or diamonds, watches,
and
any
other class o~ goods which the Central Government
may by notification in the Official Gazette specify".
It is true that lighters and flints were notified as provided in Section 123(2), in the Official Gazette of 26-8-1967.
Nevertheless, as
the provisions of Section 123(1) of the Act only lay down a procedural rule, they could be applied when the case came up for trial
before the Presidency
Magistrate who
actually
decided
it
on
15-7-1969.
Indeed, the complaint itself was filed on 30-10-1968. It
is immaterial that the appellant was found in possession of the goods
on 21-4-1967.
There is, however, another objection to the applicability of Section 123(1) of the Act. It is that it would apply only tll
goods seized under the Act.
It is contended that the goods in respect
of which the appellant was prosecuted were not seized under the Act.
Reliance was placed for this contention upon Gian Chand & Ors. v.
the State of Punjab(,!).
Even if the goods with which we are concerned here were not
seized under the Act, as provided by Section 111 of the Act, it is
contended on behalf of the State that Section 106, read with Section
114 of the Evidence Act, was sufficienno enable the prosecution to
ask the Court to presume t]Jat the appellant knew that the goods must
have been smUl?,l!led or imported in contravention of the law.
The
appellant had not produced evidence to show that the goods were
legally brouJl,ht into India. Reliance was placed on behalf of the
prosecution on : Collector of Customs, Madras & Ors. v. D. Bhoormull{2); Mis. Kanungo & Co. v. The Collector of Customs, Calcutta
& Ors.("), Issardas Daulat Ram & Ors. v. the
Union of India &
Ors.( 4 ), Anant Gopal Sheorey v. The State of Bombay(").
Learned Counsel for the appellant had. in his turn, relied upon
The State of Punjab v. Gian Chand & Ors.(6 ). He contended that it
was necessarv for the prosecution to prove : ( 1) that, the goods in
question were actually smuggled or brought into the country without
payment of customs duty at a time when payment of such duty had
become obligatory; and, (2) that, the appellant was dealing with them
knowing them to be smuizy;led goods. It was contended that mere
possession bv the accused of such goods could not enable the prosecution to apply Section 106 of the Evidence Act when the appellant
could not know where the goods caine from.
It was urged that there
was no evidence which could enable the api>ellant to know where the
goods came from or when the goods were imported or that duty, if
l~'l'i!ible, wa~_not paid on them.
The admissibility and sufficiency of
(1) [1962] (Suppl.) I S.C.R. 364.
(2) A.I.R. 1974 S.C. 859.
(3) A.I.R. 1972 S.C.R. 2136.
(4) [1962] Suppl. (1) S.C.R. 358.
(5) [1959] S.C.R. 919.
(6l Criminal Appeal No. 195 of 1962 -decided by this Court on 2-4-1963.
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BALUMAL v. MAHARASHTRA· (Beg, J.)
543
the inscriptions on the goods and the writing on boxes in which they
were found, for proving the place from where they came, or when they
were llllPOrted, were questroned,
The contention was, that even if
the appellant is deemelj to be in possession with full knowledge o{
what the goods actually "CeW, the Court could not' go further
and
assume them to be smuggled or imported into the
country from
another country of their assumed origin after a time when the restrictions on their import had been imposed.
Unfortunately, the appellant
did not admit the possession of the goods at all. If he could have
succeeded in explaining satisfactorily how he was an innocent receiver
of such goods without knowing that they were illegally importep or
smuggled he may have had a chance of getting the benefit of doubt
The very appearance of the goods and the manner in which they were
packed indicated that they were newly manufactttred and brong)it into
tills countrv verv recen\lY from another country.
The inscriptions on
them and writin~ on the boxes were parts of the state in which the
goods in unopened boxes were found from whlch inferences about their
origin and recent import could arise.
The appellant's conduct, mcluding his untruthful denial of their possession, indicated consciousness of their smuggled character or mens rea.
In any case, there was
some evidence to enable the Courts to come to the conclusion that the
goods must have been known to the appellant to be smuggled even if
he was not a party to a fraudulent evasion· of duty. Consequently, the
appellant had been convicted only under Section 135(1)(ii) of the
Act.
We do not find sufficient reasons to interfere with this finding
of fact or the sentence imposed. It would also follow that the goods
were rightly confiscated.
Accordingly, this appeal is dismissed .
V.M.K.
Appeal dismissed.