# Mr. ·c· v. Tht AdvocateGeiieral of Madras

- **Citation:** [1957] 1 S.C.R. 1110
- **Court:** Supreme Court of India
- **Decided:** 1955-05-04
- **Bench:** S. R. Das C.J, Jafer Imam, s. K. DAS, GovINDA MENON, A. K. Sarkar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mr-c-v-tht-advocategeiieral-of-madras-1322
- **Pages:** 13

## Headnote

Sea Customs-Goods sei%ed in reasonable belief that they are
1muggled goods-Burden of proof-If violative of equal protection
of law-Sea Customs Act (VII of 1878), as amended by Amending
Act (XX! of 1955), 1. 178-A-Constitution of India, Art. 14.
Section 178-A of the Sea Customs Act which places the burden
of proving that any of the goods mentioned in
the section and
reasonably believed to ~ smuggled are not really so on the person
from whose p:>ssession they arc seized, is
not discrimin2tive in
character and does not violate equal protcCtion of law guaranteed
by Art. 14 of the Constitution.
Budhan Chaudhury and Others v. The State of Bihar, (1955) I
S.C.R. 1045, applied.
Purushottam Govindji Halai v. Shri B. M. Desai, (1955) 2 S.C.R.
889 and A. Thangal Kunju Musaliar v. M. Venkitachalam Potti
and another (1955) 2 S.C.R. 1196, referred to.
J
1 ...
'
S.C.R.
SUPREME COURT REPORTS
1111
William N. McFerland v. American Sugar Refining Co., (1916)
241 U.S. 79, W. D. Manley v. State of Georgia, (1929) 279 U.S. 1
and Tot v. United States, (1943) 319 U.S. 463, held inapplicable.
Consequently, in a case where the Collector of Customs on the
failure of a person, from whose possession certain diamond pieces
were seized, to prove that they were not. smuggled goods but were
legally
imported into India, confiscated
the
diamonds
under
ss. 167(8) and 167(39) of the Sea Customs Act, no violation of the
fundamental
right conferred
by
Art.
14 of .. the
Constitution
occurred.
ORIGINAL JuRISDICTION : Petition No. 98 of 1956.
Petition under Article 32 of the Constitution of India
for enforcement of fundamental rights.
N. C. Chatterjee and S. C. Majumdar, for the
petitioner.
·
P. A. Mehta, R. Ganapathy Iyer and R. H. Dhebar,
for the respondents Nos. 1, 2, 3 and 5 .
1957. May 8. The Judgment of the Court was
delivered by
·
1957
Babula! Amlhalol
.llehta
Y.
The Co/lerlor of
Customs, Caku1111
GoVINDA MENON, J.-This application under Art. 32
Go,.indaMmonJ.
of the Constitution raises the question of the constitutionality of s. 178-A, inserted in the Sea Customs Act,
(VIII of 1878), s. 14 of the Amending Act XXI of
1955, and the chief ground on which it is sought to be
struck down is that it offends Art. 14 of the Constitution. From the affidavits of both the parties to which
there are annexures the following facts emerge :
The petitioner carries on business as a broker in
diamonds and precious stones in Calcutta and, according to him, he enjoys credit and reputation in the
market as a well-known and respectable broker of such
goods. On May 4, 1955, the Rummaging Inspector
(Intelligence), Customs House, Culcutta,
Respondent
No. 3, armed with a search warrant from the Chief
Presidency Magistrate,
Calcutta, Respondent
No.
4,
searched the residential room of the petitioner, situated
at No. 32, Sir Hariram Goenka Street, Calcutta, and after
a minute search of the steel almirah in which according
to the statement of the petitioner, he used to keep his
stock in trade and finding none there questioned him
as to where he had secreted the diamonds to which the
1957
Babula[ Amihalal
Mehta
'.
Tht Collector of
Cw toms, Calcutta
Govinda Menon J.
1112
SUPREME COURT REPORTS
[1957}
reply given by him was in the negative. Thereupon a
wall
almirah,
wherein washed
clothes,
and
other
articles were stored, was searched and therein in an old
jacket 475 pieces of diamonds were discovered along
with one piece of synthetic stone. A statement signed
by him was taken from which we find that his explanation for the possession was that Rs. 10,000/- worth of
diamonds were
received by him from
M/s. Ratilal
Amritlal, of 89 Zaveri Bazar, Bombay,
and the
rest
were
purchased
locally
in
Calcutta.
He
did
not
remember the names and address of the parties from
whom the local purchases were
made, nor did
ht·
have in his possession any
documents covering the
purchase.
Thereafter
the
Rummaging
Inspector
escorted the petitioner to the Customs House where the
Assistant Collector, Customs, asked him to

## Text

1957
Mr. ·c·
v.
Tht AdvocateGeiieral of Madras
Sinha J.
1957
M'!Y B.
1110
SUPREME COURT REPORTS
[1957]
with clients who have to trust their legal advisers
with moneys in the course of their fiduciary relationship.
These
protracted
proceedings
against
the
appellant leading up to the summons under rule 30 of
Order IV of the Supreme Court Rules have ended in
the removal of the appellant's name from the roll of
advocates of the High Court and of this Court, but
only after the complainant has lost his good money.
It is clear, therefore,
that
the
continuance of the
appellant in the legal profession is a serious menace
to the profession itself, which requires a high degree
of integrity of character and sense of responsibility in
which the appellant has been found singularly lacking.
In view of these considerations, the appeal must be
dismissed and the rule made absolute with the result
that the
appellant's name shall stand removed from
the roll of advocates of this Court.
Appeal dismissed.
BABULAL AMTHALAL MEHTA
"·
THE COLLECTOR OF CUSTOMS, CALCUTTA
(S. R. DAS C.J., JAFER IMAM, s. K. DAS,
GovINDA MENON and A. K. SARKAR JJ.)
Sea Customs-Goods sei%ed in reasonable belief that they are
1muggled goods-Burden of proof-If violative of equal protection
of law-Sea Customs Act (VII of 1878), as amended by Amending
Act (XX! of 1955), 1. 178-A-Constitution of India, Art. 14.
Section 178-A of the Sea Customs Act which places the burden
of proving that any of the goods mentioned in
the section and
reasonably believed to ~ smuggled are not really so on the person
from whose p:>ssession they arc seized, is
not discrimin2tive in
character and does not violate equal protcCtion of law guaranteed
by Art. 14 of the Constitution.
Budhan Chaudhury and Others v. The State of Bihar, (1955) I
S.C.R. 1045, applied.
Purushottam Govindji Halai v. Shri B. M. Desai, (1955) 2 S.C.R.
889 and A. Thangal Kunju Musaliar v. M. Venkitachalam Potti
and another (1955) 2 S.C.R. 1196, referred to.
J
1 ...
'
S.C.R.
SUPREME COURT REPORTS
1111
William N. McFerland v. American Sugar Refining Co., (1916)
241 U.S. 79, W. D. Manley v. State of Georgia, (1929) 279 U.S. 1
and Tot v. United States, (1943) 319 U.S. 463, held inapplicable.
Consequently, in a case where the Collector of Customs on the
failure of a person, from whose possession certain diamond pieces
were seized, to prove that they were not. smuggled goods but were
legally
imported into India, confiscated
the
diamonds
under
ss. 167(8) and 167(39) of the Sea Customs Act, no violation of the
fundamental
right conferred
by
Art.
14 of .. the
Constitution
occurred.
ORIGINAL JuRISDICTION : Petition No. 98 of 1956.
Petition under Article 32 of the Constitution of India
for enforcement of fundamental rights.
N. C. Chatterjee and S. C. Majumdar, for the
petitioner.
·
P. A. Mehta, R. Ganapathy Iyer and R. H. Dhebar,
for the respondents Nos. 1, 2, 3 and 5 .
1957. May 8. The Judgment of the Court was
delivered by
·
1957
Babula! Amlhalol
.llehta
Y.
The Co/lerlor of
Customs, Caku1111
GoVINDA MENON, J.-This application under Art. 32
Go,.indaMmonJ.
of the Constitution raises the question of the constitutionality of s. 178-A, inserted in the Sea Customs Act,
(VIII of 1878), s. 14 of the Amending Act XXI of
1955, and the chief ground on which it is sought to be
struck down is that it offends Art. 14 of the Constitution. From the affidavits of both the parties to which
there are annexures the following facts emerge :
The petitioner carries on business as a broker in
diamonds and precious stones in Calcutta and, according to him, he enjoys credit and reputation in the
market as a well-known and respectable broker of such
goods. On May 4, 1955, the Rummaging Inspector
(Intelligence), Customs House, Culcutta,
Respondent
No. 3, armed with a search warrant from the Chief
Presidency Magistrate,
Calcutta, Respondent
No.
4,
searched the residential room of the petitioner, situated
at No. 32, Sir Hariram Goenka Street, Calcutta, and after
a minute search of the steel almirah in which according
to the statement of the petitioner, he used to keep his
stock in trade and finding none there questioned him
as to where he had secreted the diamonds to which the
1957
Babula[ Amihalal
Mehta
'.
Tht Collector of
Cw toms, Calcutta
Govinda Menon J.
1112
SUPREME COURT REPORTS
[1957}
reply given by him was in the negative. Thereupon a
wall
almirah,
wherein washed
clothes,
and
other
articles were stored, was searched and therein in an old
jacket 475 pieces of diamonds were discovered along
with one piece of synthetic stone. A statement signed
by him was taken from which we find that his explanation for the possession was that Rs. 10,000/- worth of
diamonds were
received by him from
M/s. Ratilal
Amritlal, of 89 Zaveri Bazar, Bombay,
and the
rest
were
purchased
locally
in
Calcutta.
He
did
not
remember the names and address of the parties from
whom the local purchases were
made, nor did
ht·
have in his possession any
documents covering the
purchase.
Thereafter
the
Rummaging
Inspector
escorted the petitioner to the Customs House where the
Assistant Collector, Customs, asked him to produce
evidence showing that the goods were not smuggled
goods hut were legally imported on payment of duty.
The Assistant Collector then permitted the petitioner
to go and gave him time 'till May 7, 1955, to produce
evidence showing that · the goods were imported on
payment of customs duty and under a valid import
licence. On the same day, i.e., May 4, 1955, a notice
was served on the pel'itioner by the Customs authorities stating that there
were
reasonable
grounds
to
believe that the goods seized by the Rummaging Inspector had been illegally imported into India and,
therefore, before further action was taken under ss.
167(8) and 167(39) of the Sea Customs Act, the petitioner should submit by May 7, 1955, any documents
which might he in his possession showing that the
goods in question were legally imported into India on
payment of proper Customs duty and on production
of a valid import trade control licence. It is also stated
that if the goods were not imported by the petitioner,
but were brought from another party he should submit
by the same date any evidence in his possession showing the purchase of the goods. In answer to this, on
behalf of the
petitioner, Messrs. S. K. Sawdav
and
Company, a firm of Advocates, Calcutta, wrote
0
to the
Assistant Collector, Customs, on May 7, 1955, reciting
the circumstances under which the petitioner came
to
I
••
S.C.R.
SUPREME COURT REPORTS
1113
be in possession of the seized articles alleging that in
the circumstances the presumption of an offence having
been committed in contravention of s. 86 of the
Sea
Customs Act attracting a punishment under s. 167(39)
of the Sea Customs Act was unwarranted and requested to be furnished with a statement of the reasons for
the seizure as soon as possible. The letter went on to
request for ten days' time for . procuring and producing
certificates etc., from the Bombay trade and Calcutta
trade about the authenticity of the petitioner's business
and also how he came to be in possession of the goods.
Another letter was written by the same firm of Advocates on May 9, 1955, the details of which it is unnecessary to refer. On May 16, 1955, a further letter was
written
enclosing
two , certificates
and
containing
further particulars.
This also reiterated the request for
the supply of specific reasons for the seizure. On May 23,
1955, the Assistant Collector replied to the Advocates
informing them that the diamonds in question were
seized on reasonable suspicions that the same had been
imported into India illegally and as such were liable to
seizure under the Sea Customs Act.
Further correspondence followed by a letter dated June 20, 1955, to
which there was a reply on June 25, 1955, wherein
there · was a detailed reference to everything that had
taken place till then and especially with regard to the
earlier denial of the petitioner about there being any
diamonds with him and the discovery of the same later
on in a used jacket in a wall almirah. This is a comprehensive letter
containing the
justification for
the
proceedings taken by the search officers and finally the
Assistant
Collector observed
that
if
the
petitioner
failed to submit a written explanation in time or did
not appear before him when the case was fixed for
hearing, the case would have to be decided on the basis
of the evidence on the record without any further notice.
On July 1, 1955, Messrs. S. K. Sawday & Company
wrote a further letter on behalf of the petitioner reiterating ·their objections and showing why
action
should
not be taken. This was followed by letters dated July
4 and 20, 1955. A personal hearing was. granted on
July 21, 1955, followed by a letter from the Advocates
5-81 S.C. India/59
1957
Babula! Amtha/al
Mehta
v.
The Colkctor of
Customs, Calcutta
Govinda Menon J.
1957
Ba!ulal Amlhai.l
MehltJ
...
The Colkctor of
Cwtoms. Calcutlo
Goriinda Merwn J.
1114
SUPREME COURT REPORTS
[1957]
dated July 22, 1955. It is unnecessary for the present
to elaborate the contents of these letters or to refer to
the statement enclosed therewith from M/ s.
Ratilal
Amritlal, Bombay .
The Collector of Customs thereupon, after considering the entire matter placed before him, passed
an
order dated September 12, 1955, which was despatched
on November 5, 1955, containing an elaborate discussion of the various facts and circumstances and finally
concluding that since the
petitioner
had
failed
to
discharge the onus under s. 178-A of the Sea Customs
Act in respect of the diamonds seized on May
4,
1955, orders had been passed confiscating the
same
under ss. 167(8) and 167(39) of the Sea Customs Act
and that the confiscation would be absolute in terms
of the provisions of ss. 3(2) and 4 of the Imports and
Exports (Control) Act, 1947. The reasons given in the
above order were that the subsequent statements were
contrary to what had been stated in the first instance,
that at the time of the raid, an attempt was made to.
hide the diamonds in a suspicious manner and lastly
that the petitioner was making statements which were
in the nature of an afterthought, and not supported by
facts.
On account of these and
other reasons
the
Collector was of
the opinion that the presumption
under s. 178-A had
not been
rebutted. The order
stated that an appeal against it lay
to the
Central
Board of Revenue within three months of the date of
the despatch and also contained information as to the
court-fee stamps etc., which would have to be affixe_d.
Without availing himself of that remedy the petitioner
has come up to this Court by way of an application
for a writ under Art. 32 of the Constitution.
Though Mr.
Chatterjee faintly
argued · tpat the
provisions of Art. 19(1)(f) and (g) and Art. 31 of the
Constitution had been violated. he did not seriomlv
press those contentions. The main point of the attack
was centered on the contention that
s. 178-A was
violative of the principles of equal protection of the
laws guaranteed under Art. 14 of the Constitution.
Before we discuss the validity of s. 178-A, it would
be . useful to consider the circumstances which led
to
..
'
: ~
S.C.R.
SUPREME COURT REPORTS
1115
the enactment of that statutory provision and for that ·
purpose a brief outline of t.1.e relevant sections of the
Act would be necessary.
Section 19 of the Sea Customs Act, 1878, enables the
Central
Government by Notification in . the official
Gazette to prohibit or restrict importation or exportation of goods into or out of India, and s. 20 enumerates
the dutiable goods. When any person imports goods
into India, the owner of such goods is required, after
the delivery of the manifest by the master of the vessel
in which they are imported, to make an entry of the
goods for home consumption or warehousing by delivering to the Customs-collector a bill of entry containing
particulars which shall correspond with the particulars
given of the same goods in the manifest of the ship
(s. 86). This is intended to give an idea to the Custoinscollector as · to whether what the owner claims is
different or the same as what the master of the vessel
has intimated by the delivery of · the manifest. On the
delivery of such a bill, if any duty is payable on such
goods, the same shall be assessed and it is only after
payment of the duty so assessed that the owner may
proceed to .clear the same (s. 87). Clearance of the
goods after the payment of such duty is provided in
s. 89 and if everything has been done according to law,
the owner can take away the goods.
C!upter XVI deals with offences and penalties and
s. 16/' of the same Chapter contains three columns in a
schedule, the first of which mentions the offence, the
second, which does not have the force of law, gives the
section of the Act to which the offence has reference
and the third lays down the penalty which may be
imposed. \:Vith regard to the third column a distinction
has to be rnade between the penalty to be imposed by
the customs authorities and the punishment that can
be imposed by a court of law for the infringement of
certain
provisions.
Offences
mentioned
in
entries
Nos. 26, 72 and 74 to 76 (both inclusive) have. reference
to prosecution
:md
conviction
before a
Magistrate,
whereas most of the others concern penalties imposed
by the Customs authorities: This distinction will be
important when referring to s. 182. We are in this
1957
Babula/ Amlho/a/
Mehla
v.
Thi Collettor of
Ciutams, Cakutl•
~rind11 Mmon J.
1957
Ba!ulal AmlhalaJ
Mehta
"·
The Collector of
Customs, Calattta
Goouida Menon J.
1116
SUPREME COURT REPORTS
[19571
case concerned with entries Nos. 8 and 39. The penalty
of confiscation is provided in the third column of entry
No. 8, if any goods, the importation or exportation of
which is prohibited or restricted, are imported contrary
to such prohibition or restriction. It lays down that
in addition to the confiscation of the goods, the persons
concerned shall be liable to a penalty not exceeding
three times the value of the goods, or not exceeding
one thousand rupees. This Court has held that the
minimum is the alternative: see Maqbool Hussain
v.
The State of Bombay( 1). Entry No. 39 also provides for
a penalty not exceeding Rs. 500 and the confiscation
of the goods if they are taken or passed out of any
custom.house or wharf without an entry duly made.
Smuggled goods when traced and seized come under
this category. Though the word 'smuggling' is
not
defined in the Act, it must be understood as having
the ordinary dictionary meaning namely carrying of
goods clandestinely into a colmtry.
Chapter XVII relates to searches and recovery of
smuggled goods,
as well as
offences, appeals, etc.
Section 169 gives power to any customs officer, duly
employed in the prevention of smuggling, to search anv
person on board of any vessel in any part in (India)
or any person who has landed from any vessel, provided
that such officer has reason to believe that such person
has dutiable or prohibited goods secreted about
his
person. A safeguard is provided under s. 170 by which
any person about to be searched may require the said
officer to take him, previous
to search, before the
nearest Magistrate or Customs-collector. The important
factor in this case is that the person making the
search or attempting to do it must have a reason to
believe that such person has dutiable or prohibitecl
goods. These two sections refer to the time at which
a person brings dutiable goods into India but the later
provisiom of the Chapter lay down the procedure to be
followed where goods have
been
smuggled without
being detected · at the port or the wharf. Power to
issue search warrants is given to any Magistrate under
s. 172 which is to the following effect :
{I) [1953) S. C.R. 730,742.
f
S.C.R.
SUPREME COURT REPORTS
1117
"Any
Magistrate
may,
on
application
by
a
Customs-collector, stating his
belief that dutiable or
prohibited goods (or any documents relating to such
goods) are secreted in any place within the local limits
of the jurisdiction of such Magistrate, issue a warrant
to search for such goods (or documents).
Such warrant shall be executed in the same way
and shall have
the same effect, as a search-warrant
issued under the law .relating to Criminal Procedure".
The warrant, as will be noticed, may be issued only
on the application of a Customs-collector who is a
responsible senior officer and that is certainly a safeguard against indiscriminate issue of search warrants.
Section 178 speaks of the seizure of goods liable to
confiscation in any place either upon land or water by
any
officer of customs
or any
other person duly
employed
for
the
pre•ention
of
smuggling.
The
impugned s. 178-A comes next which is quoted below :
"178-A(l) : 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 . on
the person from
whose possession
the goods
were
seized.
(2) This section shall apply to gold, gold manufactures, diamonds and other precious stones, cigarettes
and cosmetics and any other goods which the Central
Government may, by notification in the Official Gazette,
specify in this behalf."
The presumption under s. 178-A is equally applicable
to seizure as a result of a search warrant under s. 172
or seizure made under s. 178. How the things seized
are to be dealt with can be seen from s. 179, and s. 181
lays down that when a seizure or arrest is made, a
statement in writing of the reasons therefor should
be given to the person who is arrested or from whom
goods are seized. When an article is seized under
ss. 172 and 178, except in cases falling under entries
Nos. 26, 72 and 74 to 76 of s. 167, the confiscation or
penalty or
duty may be
adjudged
by
the
officer
mentioned therein, i.e.,
the person
from whom the
articles
are
seized
1s
entitled
to an
adjudication
1957
Babu/al AmJha/al
Mehta
v
The Collector of
Customs, Cai."utta
Govinda Menon J.
1957
Bobola! .ilmlMI•
M1Ala
v
The Coll1ct1r of
Cutuns. Cakulta
GeuindtJ Menon.].
. ,/
1118
SUPREME COURT REPORTS
[1957]
regarding either confiscation· or penalty or duty.
This
gives the valuable right of having the adjudication of
the claim made by a superior officer, and despite such
adjudication if the confiscation is still made, under
s. 188 an appeal lies from the subordinate to the Chief
Customs-authority within three months from the date
of such a decision.
In the present case the
confiscation was made by the Collector of Customs and an
appeal lay from him to the Central Board of Revenue.
Section 191 enables the Central Government on the
application of any person aggrieved by
any
decision
or order passed under this Act by an officer of Customs
or Chief Customs-authority and from which no appeal
lies, to reverse or modify such decision or order. The
outline of the various provisions above made shows
that successive remedies are provided to an aggrieved
person from whom
articles
have
been
seized
and
confiscated and the Act is a complete Code in itself
affording redress
and
relief
m case
of illegal or
unjustified orders.
The genesis of s. 178-A may now be considered.
The Central· Government had appointed a commission
known as the Taxation
Enquiry Commission which
by
its
report recommended
the
adoption of
the
principles underlying s. 178-A in order to minimize
smuggling. In Vol. II of their report, Chapter VII
deals
with administrative
problems in regard
to
customs and Excise duties. At pp. 320 and 321 the
Committee recommends the amendment of the Sea
Customs Act, firstly to •. make smuggling a criminal
offence and secondly empowering Customs officers to
search premises etc. and
the
third
recommendation
is the one with which we are concerned. It is in the
following terms :
"To transfer the onus of proof in respect of
offences relating to smuggling to the person in whose
possession any dutiable, restricted or prohibited
goods
are found."
It
is
to
implement
this
recommendation
that
s. 178-A has been enacted.
Section
178-A
applies
to
diamonds
and
other
precious stones and there has been no dispute about
: .
S.C.R.
SUPREME COURT REPORTS
1119
the application of this provision to the present case.
On the facts mentioned above it is clear that the
seizure has been under the Act in the reasonable belief
of the Customs authorities that they
are smuggled
goods and, therefore, the burden of proving that they
are not smuggled goods has been cast by this section
on the persons from whose possession the goods are
seized.
No doubt the content and
import of the
section are very wide. It applies not only
to
the
actual smuggler from whose possession the goods are
seized but also to those who came into possession of
the goods after having purchased the same after the
same has passed
through many hands
or agencies.
For example, if the
Customs
authorities
have
a
reasonable beilef that certain goods in the possession
of an innocent party are smuggled goods and the same
is seized under the provisions of this Act, then the
person from whose possession the goods were seized,
however innocent he may be, has to prove that the
· goods are not smuggled articles. This is no doubt a
very heavy and onerous duty cast on an innocent
possessor who, for aught one knows, may have bona
fide paid adequate consideration for the purchase of
the articles without knowing that the same has been
smuggled. The only pre-requisite for the application
of the section is the subjectivity of the Customs-officer
in
having a reasonable belief that the goods
are
smuggled.
A careful examination of the contents of the' somewhat lengthy petition under Art. 32 of the Constitution
does not show how the impugned section offends
Art. 14, and no distinct and separate ground is taken
about
its
unconstitutionality,
but
Mr.
Chatterjee
argues that the burden of proof enunciated therein is
opposed to fundamental principles of natural justice
as it gives an unrestricted arbitrary and naked powe;
to the customs authorities without laying down any
standard O( norm to be followed for exercising powers
uader the section. What is urged is that whereas
~nder ~he. ordinary law the burden of proof in matters
like this 1s on the party who sets up a particular case
under the section that process
is
inverted
and
th~
1957
Babula/ Amlholol
Mehta
v.
The Collector of
Customs, Calcutlo
Govinda Minon ].
1957
Babula! Amthalal
Mehta
v.
The Collector of
Customs, Calcutta
Govinda Menon J.
1120
SUPREME COURT REPORTS
[1957]
burden is cast on the possessor of the article to show
that it was imported into India with a prope1 bill of
entry and after paying the proper custom duty due.
As stated already, it is a heavy burden to be laid
upon the shoulders of an
innocent
purchaser
who
might have come into possession after the article has
changed many hands and this, it is alleged, invokes
discrimination between him and other litigants and
deprives him of the equal protection of
the
law
guaranteed by Art. 14 of the Constitution. A large
number of cases have been cited at the Bar in support
of. the. respective contentions of the parties.
The true nature, scope and effect of Art. 14 of
the Constitution have been explained
by
different
constitutional Benches of this Coun in a number of
cases, namely, Chiranjit Lal Chowdhury v. The Union
of India and Others(1 ), The State of Bombay and Another
v. F. N. Balsara('), The State of West Bengal v. Anwar
Ali Sarkar('), Kathi Raning Rawat v.
The State of
Saurashtra( 4 ), Lachmandas-Kewalram Ahuja and Another
v. The State of Bombay('), Syed Qasim Razvi v. The
State of Hyderabad and Others('), Habeeb Mohammad
v. The State of Hyderabad(') and V. M. Syed Mohammed
and Company v. The State of A11dhra(8 ), but it will not
be necessary for us to enter upon a lengthy discussion
of the matter or to refer to passages in those judgments, for
the principles
underlying the provisions
of the Article have been summarised by a Full Bench
of this Court in Bttd!ian Chaudhury and Others v. The
State of Bihar(9) in the following terms :
"It is now well established
that while Art.
14
forbids
class legislation, it does not forbid reasonable
cbssification for the purposes of legislation.
In
order,
however, to pass the test of permissible
classification
two conditions must be fulfilled, namely (i) that the
classification must be founded on an intelligible differentia which
distinguishes
persons
or
things
that
(1) [1950] S.C.R. HGg.
(2) [•951] S.C.R. GB,,
(:l) [19,;·o] S.C.R. "84.
(.f) [19;,2] S.C.R. 435.
(9) (19'\5)
(5) [•952] S.C.R. 710
(6) [1953] S.C.R. 591
() [19;3] S.C.R. 661
(8) (1954] S.C.R. rn7
1 s.c.R. IO-J.5 at P. 1048-1049.
•
S.C.R.
SUPREME COURT REPORTS
1121
are grouped together from others left out of the group
and (ii) that that differentia
must have
a
rational'
relation to the object sought to be achieved by the
statute in question. The classification may be founded
on different bases, namely, geographical or
according.
to objects or occupations or the like. What is necessary
is that there must be a nexus between the basis of
classification and the object of the Act under consideration. It is also well established by
the decisions of
this Court that Art. 14 condemns discrimination not
only by a substantive
law but also
by
a
law of
procedure."
The principle thus enunciated
has
been adopted .
and
applied by this
Court in · Purshottam
Govindji
Halai v. Shri B. M. Desai(1) and in A. Thangal Kunju
Musaliar
v.
M. Venkitachalam Patti and another(2).
Mr. N. C. Chatterjee appearing for the petitioner has
referred us to several decisions of the Supreme Court
of America, such as William N. McFerland v. American
.Sugar Refining Co.( 3 ), W. D. Manley
v.
State of
Ceorgia(4) and Tot v. United States(•). It appears
to
us that these
decisions
really
turn
upon
the due
process clause of the American Federal
Constitution
and cannot help in the construction of the equal
protection clause of our Constitution. The contentions
urged by Mr. Chatterjee as to the unconstitutionality
of s. 178-A of the Sea Customs Act, 1878, will, therefore, have to be tested in the light of the principles
laid down by
this
Court in Budhan Chowdhury's
case (supra).
A cursory perusal of s. 178-A will at once disclose
the well defined classification of goods based
on an
intelligible differentia.
It applies only to certain goods
described in sub-s. (2) which are or can . be easily
smuggled. The section applies only to
those . goods
of the specified kind which have been seized under
the Act and in
the reasonable belief that . they
are
(1) [1955] 2 S. C R. 889, 8g8·899.
(2) [1955] 2 S. C R
119~. 12296.
(3) (1916) 241 U S 79; 60 L. Ed. 899.
(4) (1929) 279 U.S. 1; 73 L. Ed 575.
(5) (1943) 319 U.S. 463; 87 L. Ed. 1519.
144
1957
Babula/ Amthalal
Mehl a
v.
The Col/:clor of
Customs. Ca/£utta
Govinda Menon J.
1957
Babu/al .Amlltalal
Metlio
v.
T lu Collector of
Customs, Cakutta
1957
Ma7 IO.
1122
SUPREME COURT REPORTS
[1957J
smuggled goods. It is only those goods which answer
the threefold description that come under the operation
of the section. The object of the Act is to prevent
smuggling. The differentia on the basis of which the
goods have been classified and the presumption raised
by the section obviously have - a rational relation
t<>
the object sought to be achieved by the Act. The
presumption only attaches to goods of the description
mentioned in the section and it directly furthers the
object of the Act, namely, the prevention of smuggling,
and that being the position the impugned section is
clearly within the principle enunciated above, not hit
by Art. 14. The impugned section cannot be struck
down on
the
infirmity either of
discrimination
or
illegal
classification.
Confining as it does to certain
classes of goods seized by the customs authorities on
the reasonable belief that they are smuggled goods,
there is only a presumption which can be rebutted.
In these circumstances, there can
be no doubt
whatever that s. 178-A does not offend Art. 14 of the
Constitmion and
this
petition
1s,
therefore,
to be
dismissed with costs.
Petition dismissed.
MENAKURU DASARATHARAMI REDD!
ti.
DUDDUKURU SUBBA RAO
(S. R.
DAS C.J.,
fAFER
IMAM,
GAJENDRACADKAR
and A. K. SARKAR JJ.)
Hindu
[Aw-Charitable
Endowment-Compromise
decreeCorutruction-Trust or charge-Intention of the donor-Test.
A Hindu father executed a registered deed of trust giviug
away his properties to public charities
and appointed
himself and
two others as trustees.
The .son
in assertion by his right
to a
moiety share therein started to alienate them.
There was
litigation
between the trustees and the son which ultimately ended in a
compromise decree for .partition bet\\·een the father and the
!'011,
the two other trustees
having retired pending litigation.
A ftei
'
the death of both the father and the son a suit was brought under
~~