{"id":73409,"date":"2009-04-23T00:00:00","date_gmt":"2009-04-22T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009"},"modified":"2018-07-05T00:57:53","modified_gmt":"2018-07-04T19:27:53","slug":"dhobiwad-vs-house-on-23-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009","title":{"rendered":"Dhobiwad vs House on 23 April, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Dhobiwad vs House on 23 April, 2009<\/div>\n
Bench: Ranjana Desai, J.P. Devadhar<\/div>\n
    AJN\n                                   1\n\n          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n\n\n\n\n                                                                          \n             ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                 \n                  WRIT PETITION NO.2152 OF 1996\n\n     1 Sailash Amulakh Jogani of           )\n\n\n\n\n                                                \n       Gujarat,     Indian   Inhabitant,   )\n       residing at 402, Vasuphara Asha     )\n       Nagar, Navsari, Dist. Valsad,       )\n       Gujarat.                            )\n\n\n\n\n                                      \n     2 Pankaj K. Jogani of Gujarat,        )\n       Indian Inhabitant, residing at      )\n\n       Dhobiwad,\n                        \n       Room No.2, Ganesh Niwas,\n                     Navsari,   District\n                                           )\n                                           )\n       Valsad Gujarat.                     )   ....    Petitioners\n                       \n              Versus\n        \n\n     1 Union of India                      )\n     \n\n\n\n     2 Customs Excise and Gold             )\n       (Control) Appellate Tribunal,       )\n       WRB, P.N.B. House, Sir P.M.         )\n       Road, Fort, Mumbai - 400 001.       )\n\n\n\n\n\n     3 Shri R. Jayaraman, Member           )\n       (Technical) of the Customs          )\n       Excise and Gold (Control)           )\n       Appellate Tribunal, having his      )\n       office at PNB House, Sir P.M.       )\n\n\n\n\n\n       Road, Fort, Mumbai - 400 001.       )\n     4 Mr. P.K. Desai, Member (Judicial)   )\n       of the Customs, Excise and Gold     )\n       (Control)   Appellate   Tribunal,   )\n       having his office at PNB House,     )\n       Sir P.M. Road, Fort, Mumbai -       )\n       400 001.                            )\n\n\n\n\n                                                  ::: Downloaded on - 09\/06\/2013 14:32:39 :::\n     AJN\n                                      2\n\n\n\n\n                                                                           \n     5 Collector of Customs (Preventive)     )\n       having his office at Customs          )\n\n\n\n\n                                                   \n       House, Ballard Estate, Mumbai -       )\n       400 038.                              )   ..... Respondents\n\n\n\n\n                                                  \n    Mr. S.P. Kanuga with Ms. Nisha Valani for the petitioners.\n\n    Mr. R.V. Desai with Mr. H.V. Mehta for the respondents.\n\n\n\n\n                                         \n                       CORAM  :  SMT. RANJANA DESAI &\n                          \n                                    J.P. DEVADHAR, JJ.\n<\/pre>\n
                       DATE ON WHICH THE JUDGMENT IS<\/p>\n
                       RESERVED :  4TH MARCH, 2009.\n<\/p>\n
                       DATE ON WHICH THE JUDGMEMT IS
\n                       PRONOUNCED : 23RD APRIL, 2009.\n<\/p>\n
    JUDGMENT :-   (Per Smt. Ranjana Desai, J.)<\/p>\n
    1.    In this writ petition filed under Article 226 of the Constitution<\/p>\n
    of India, the petitioners have prayed for quashing of Order dated<\/p>\n
    3\/12\/1992 passed by respondent 5 i.e. the Collector of Customs<\/p>\n
    (Preventive), Bombay (for short, “the Collector of Customs”) being<\/p>\n
    Order No.48\/92 and Order dated 29\/12\/1995 passed by the<\/p>\n
    Customs Excise and Gold (Control) Appellate Tribunal (for short,<\/p>\n
    “the CEGAT”) in appeals arising therefrom.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span><\/p>\n
     AJN
\n                                        3<\/span><\/p>\n
    2.      It is necessary to begin with the facts. Petitioner 1 claims to<\/p>\n
    be a broker and dealer in diamonds. He is also a partner of M\/s.\n<\/p>\n
    Sudit Gems, a firm carrying on business at Navsari. Petitioner 2 is<\/p>\n
    also a broker and a dealer in diamonds.\n<\/p>\n
    3.      Pursuant to specific information, the officers of M & P Wing of<\/p>\n
    Customs visited, on 21\/3\/1991, the business premises of M\/s. M.\n<\/p>\n
    Ambalal & Co. at S.V. Road, Bombay, and apprehended one<\/p>\n
    Rajendra @ Raju, who was standing outside the premises with a<\/p>\n
    cloth bag in his hand, which, on subsequent examination was<\/p>\n
    found     to   contain   7390.82   carats   of   diamonds        valued        at<\/p>\n
    Rs.79,40,506.25. They were claimed by the firm, but no accounts<\/p>\n
    were found to have been maintained for the same.                  Inside the<\/p>\n
    premises, one Dayabhai Patel, partner in the firm as also, Ukabhai<\/p>\n
    Patel and Himatbhai Thedi were present, and while search was in<\/p>\n
    progress, Dharmendra Shah, Shailesh Jogani i.e. petitioner 1 and<\/p>\n
    Pankaj Jogani i.e. petitioner 2 entered the premises. The search of<\/p>\n
    the premises resulted in recovery of 410.18 carats of diamonds<\/p>\n
    valued at Rs.4,20,324.50 not duly accounted for and also of some<\/p>\n
    loose papers, suspected to be the accounts of diamonds not<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                      4<\/span><\/p>\n
    recorded in the account registers of the firm. Personal search of<\/p>\n
    the other persons in the premises resulted in recovery of 127.17<\/p>\n
    carats of diamonds valued at Rs.61,854\/- from Ukabhai J. Patel,<\/p>\n
    66.64 carats of diamonds valued at Rs.1,53,272\/- from Himatbhai<\/p>\n
    Thedi, 27.87 carats of diamonds valued at Rs.97,545\/- from<\/p>\n
    Dharmendra Shah, 2.57 carats of diamonds valued of Rs.4,455\/-\n<\/p>\n
    from petitioner 2,   223.75 carats valued at Rs.4,56,618\/- from<\/p>\n
    petitioner 1. In addition, the officers also recovered 83.01 carats of<\/p>\n
    diamonds from petitioner 1, but released the same on his providing<\/p>\n
    due explanation.      The officers also recovered unaccounted<\/p>\n
    diamonds weighing 866.49 carats valued at Rs.12,997\/- from<\/p>\n
    Locker No.303 in the name of Maganbhai Dayabhai and diamonds<\/p>\n
    weighing 6681.01 carats valued at Rs.4,11,294.66 from Locker<\/p>\n
    No.1073 of Ravjibhai Ambalal. Another business premises of M\/s.\n<\/p>\n
    M. Ambalal at Parekh Market were also searched and 4206.56<\/p>\n
    carats of unaccounted diamonds valued at Rs.3,93,386.87 were<\/p>\n
    recovered. The diamonds recovered were seized and statements<\/p>\n
    of the persons concerned were recorded and on completion of the<\/p>\n
    investigation, show cause notice dated 12\/9\/1991 followed by the<\/p>\n
    corrigendum dated 28\/8\/1992, notifying the change in the<\/p>\n
    adjudicating authority, were issued.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span><\/p>\n
     AJN
\n                                       5<\/span><\/p>\n
    4.    The petitioners contested the show cause notice. On behalf<\/p>\n
    of the petitioners, the investigating officer and the jewelery<\/p>\n
    appraiser were cross-examined.          It was urged that by mere<\/p>\n
    physical examination even the experts cannot say with certainty<\/p>\n
    that the diamonds are of foreign origin; that the goods are not<\/p>\n
    notified under Chapter IVA; that there is no statutory requirement of<\/p>\n
    maintaining documents\/records; that non availability of documents<\/p>\n
    like Jhangad, etc. is at best an irregularity but not an illegality; that<\/p>\n
    the petitioners are not concerned with M\/s. M. Ambalal & Co.; that<\/p>\n
    their presence in the premises was a mere coincidence and<\/p>\n
    therefore, there is no reasonable belief for effecting the seizure of<\/p>\n
    diamonds from them; that the Superintendent although physically<\/p>\n
    present could not have supervised the recording of seven different<\/p>\n
    statements; that identical language has been used in the<\/p>\n
    statements and these statements should have more appropriately<\/p>\n
    been recorded under Section 107 of the Customs Act, 1962 and<\/p>\n
    the provisions of Section 123 of the Customs Act, 1962 are not<\/p>\n
    applicable to the case and that there is no evidence to justify the<\/p>\n
    confiscation of diamonds and imposition of penalty.\n<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span><\/p>\n
     AJN
\n                                      6<\/span><\/p>\n
    5.    The Collector of Customs upon considering the relevant<\/p>\n
    material and the submissions advanced on behalf of the noticees<\/p>\n
    ordered confiscation of seized diamonds from Rajendra Bhamra<\/p>\n
    and M\/s. M. Ambalal & Co.        He gave option to redeem the said<\/p>\n
    diamonds. He ordered payment of appropriate duty on the said<\/p>\n
    diamonds.    So far as petitioner 1 is concerned, he ordered<\/p>\n
    confiscation of 223.75 carats of diamonds valued at Rs.4,50,618\/-.\n<\/p>\n
    He gave option for redemption of the said diamonds on payment of<\/p>\n
    fine of Rs.3 lakhs.   He ordered confiscation of 2.57 carats of<\/p>\n
    diamonds valued at Rs.4,955\/- from petitioner 2. He gave him an<\/p>\n
    option to redeem the said diamonds on payment of Rs.2,500\/-. He<\/p>\n
    imposed penalty under Section 112 (b)(i) of the Customs Act, 1962<\/p>\n
    on petitioner 1 and ordered him to pay Rs.40,000\/-.               He also<\/p>\n
    imposed penalty on petitioner 2 under the same provision and<\/p>\n
    ordered him to pay Rs.1,000\/-.\n<\/p>\n
    6.    The said order was challenged by the petitioners along with<\/p>\n
    M\/s. M. Ambalal & Co. before the CEGAT. The CEGAT by order<\/p>\n
    dated 29\/12\/1995 allowed the appeal filed by Rajendra Bhamra<\/p>\n
    and Dharmendra Shah.      The CEGAT partly allowed the appeal<\/p>\n
    filed by Himatbhai Thedi so far as the personal penalty is<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                        7<\/span><\/p>\n
    concerned.       The CEGAT, however, rejected the appeals of the<\/p>\n
    petitioners and confirmed the order of the Collector of Customs<\/p>\n
    (Preventive) Bombay.        Being aggrieved by the said orders, the<\/p>\n
    petitioners have preferred this appeal.\n<\/p>\n
    7.    We have heard Mr. Kanuga, learned counsel appearing for<\/p>\n
    the petitioners.       We have also carefully perused the written<\/p>\n
    submissions filed on behalf of the petitioners.\n<\/p>\n
    8.    Gist of the arguments of Mr. Kanuga, learned counsel for the<\/p>\n
    petitioners :\n<\/p>\n
           a)       There is an error apparent on the face of order of the<\/p>\n
                    Collector of Customs and the order of the CEGAT as<\/p>\n
                    they have proceeded on the footing that the burden of<\/p>\n
                    proving that the diamonds were not smuggled into India<\/p>\n
                    was on the petitioners.   The proceedings under the<\/p>\n
                    Customs Act being penal in nature, the burden of<\/p>\n
                    proving its case is always on the Department except<\/p>\n
                    where the goods are notified under Chapter IV-A or<\/p>\n
                    Section 123 of the Customs Act, 1962 which is not the<\/p>\n
                    case here. Sections 106 and 114 of the Evidence Act<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                       8<\/span><\/p>\n
               have no application as the onus is on the Department<\/p>\n
               to prove that the goods are tainted.\n<\/p><\/blockquote>\n
          b)   The Collector of Customs as well as the CEGAT have<\/p>\n
               misread the judgment of the Supreme Court in<\/p>\n
               Collector   of   Customs,   Madras   &   Ors.     v.     D.\n<\/p><\/blockquote>\n
               Bhoormall,   (1974)   2   SCC   544.        The CEGAT has<\/p>\n
               observed that it is held in that judgment that since it is<\/p>\n
               exceedingly    difficult,   if   not   impossible          for     the<\/p>\n
               prosecution agency to prove the facts which are<\/p>\n
               specifically within the knowledge of the opponent, the<\/p>\n
               prosecution is not obliged to prove them as a part of its<\/p>\n
               primary burden.     On the contrary, in that case, the<\/p>\n
               Supreme Court has held that even if a person who is to<\/p>\n
               be proceeded against has a special or peculiar<\/p>\n
               knowledge of facts, the Department is not relieved of its<\/p>\n
               burden to establish that the goods have entered into<\/p>\n
               the country illegally and the said goods were smuggled.<\/p><\/blockquote>\n
               This view is followed by the Division Bench of this<\/p>\n
               Court in Commissioner of Customs   v.   Shri Ganesh<\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                   9<\/span><\/p>\n
               Enterprises,   2006   (73)   RRT   320   and   the<\/p>\n
               Commissioner of Customs  v.  M\/s. Akash Enterprises<\/a><\/p>\n
               in Customs Appeal No.11 of 2006 decided by Division<\/p>\n
               Bench of this court [R.M. Lodha & J.P. Devadhar, JJ.]<\/p>\n
               on 8\/3\/2006.\n<\/p>\n
          c)   The CEGAT has wrongly observed that petitioner 1 had<\/p>\n
               no documentary evidence to substantiate his case that<\/p>\n
               he had purchased the seized diamonds from a trader in<\/p>\n
               Navsari.    In fact, by letters dated 2\/4\/1991 and<\/p>\n
               24\/4\/1991, he retracted his statements dated 22\/3\/1991<\/p>\n
               and 23\/3\/1991 and explicitly stated that the diamonds<\/p>\n
               were not smuggled and that he was willing to produce<\/p>\n
               and give accounts and information. He gave names of<\/p>\n
               suppliers – Ramesh T. Shah and Mayank Diamonds<\/p>\n
               Private Limited and others. He addressed several<\/p>\n
               letters to the Customs praying for release of the<\/p>\n
               diamonds.\n<\/p>\n
          d)   The finding of the CEGAT that only after issuance of<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                   10<\/span><\/p>\n
          show cause notice, names of the parties were<\/p>\n
          specifically furnished for part quantity of diamonds and<\/p>\n
          no details were furnished for the balance quantity is<\/p>\n
          wrong. Letters dated 2\/4\/1991 and 24\/4\/1991 establish<\/p>\n
          this.   Besides the petitioners made personal visits<\/p>\n
          seeking opportunity to produce documents.                      Letter<\/p>\n
          dated 3\/9\/1991 was addressed to the Department<\/p>\n
          expressing readiness to show all original documents.\n<\/p>\n
          The     petitioners      addressed         letters      forwarding<\/p>\n
          documents and ledger accounts showing that polished<\/p>\n
          and cut diamonds are not of foreign origin.                       The<\/p>\n
          Department did not verify the documents.                          The<\/p>\n
          Department did not obtain any expert’s opinion. The<\/p>\n
          finding recorded by the Collector of Customs that<\/p>\n
          incorrect      and   improper    details     claimed        by     the<\/p>\n
          petitioners have not been specified in the letter and that<\/p>\n
          the petitioners have not denied that the diamonds were<\/p>\n
          of illicit nature is wrong because in letter dated<\/p>\n
          2\/4\/1991 and in subsequent letters the petitioners have<\/p>\n
          specifically    stated    that   the   diamonds           are      not<\/p>\n
          contraband. The CEGAT committed an error when it<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                    11<\/span><\/p>\n
               stated that the documents were not produced when in<\/p>\n
               fact they were produced.\n<\/p>\n
          e)   Both the petitioners are carrying on business in<\/p>\n
               diamonds at Navsari. They had given their addresses.\n<\/p>\n
               Petitioner 1 has a workshop. Diamond business is his<\/p>\n
               ancestral business. He had given names of suppliers.\n<\/p>\n
               Petitioner 2 is a broker and goods found with him were<\/p>\n
               hardly worth Rs.4,000\/- and were freely available. Both<\/p>\n
               the petitioners have nothing to do with M\/s. Ambalal &<\/p>\n
               Co. They are not it’s employees. When they entered<\/p>\n
               the premises of M\/s. Ambalal & Co., their search was<\/p>\n
               conducted and diamonds were recovered. The officers<\/p>\n
               of the Customs could never have had reasons to<\/p>\n
               believe that they were carrying smuggled goods. The<\/p>\n
               seizure is therefore illegal as reasons to believe were<\/p>\n
               not based on any cogent material.       Buying of rough<\/p>\n
               diamonds, getting them polished and selling them is not<\/p>\n
               prohibited in law.\n<\/p>\n
          f)   The alleged confessional statements of the petitioners<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                     12<\/span><\/p>\n
                were recorded when they were detained for three days<\/p>\n
                and three nights.     They are involuntary and false<\/p>\n
                statements. They are hit by Section 24 of the Indian<\/p>\n
                Evidence Act.      Initial burden of proving that the<\/p>\n
                confession is voluntary is on the Department. Alleged<\/p>\n
                confessional statements and retractions have not been<\/p>\n
                considered in their proper perspective.         Judgment of<\/p>\n
                the Supreme Court in Vinod   Solanki     v.     Union   of<\/p>\n
                India<\/a> 2009 (233) E.L.T. 157 (SC)  completely supports<\/p>\n
                the petitioners.\n<\/p>\n
           g)   In the circumstances, the impugned orders deserve to<\/p>\n
                be set aside.\n<\/p>\n
    9.    Gist of the arguments of Mr. Desai, learned counsel for the<\/p>\n
    respondents.\n<\/p>\n
           a)   The petitioners have not been able to produce any<\/p>\n
                documents to prove the legitimate origin of the<\/p>\n
                diamonds.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span><\/p>\n
     AJN
\n                                    13<\/span><\/p>\n
          b)   Identity of the sellers is not established. There is no<\/p>\n
               account of the seized diamonds.           There are no<\/p>\n
               vouchers to establish that they are not smuggled<\/p>\n
               diamonds. Only after show cause notice was issued,<\/p>\n
               some particulars were supplied but they were not<\/p>\n
               satisfactory.   The documents subsequently produced<\/p>\n
               could not be linked to seized diamonds.\n<\/p>\n
          c)   In this connection, judgment of the Supreme Court in<\/p>\n
               Shah Guman Mal  v.   State of A.P., 1980 SCC (Cri.)<\/p>\n
               432 is important.     In that case, it is held by the<\/p>\n
               Supreme Court that if the accused failed to disclose<\/p>\n
               identity of the person who gave him the smuggled gold<\/p>\n
               it was open for the court to presume under Sections<\/p>\n
               106 and 114 of the Evidence Act that the gold in his<\/p>\n
               possession was smuggled and imported without<\/p>\n
               permission.\n<\/p>\n
          d)   Judgment of the Supreme Court in Bhoormall’
\n                                                         s   case<\/p>\n
               (supra) supports the respondents. In that case, it is<\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                     14<\/span><\/p>\n
               held that on the principles underlying Section 106 of the<\/p>\n
               Evidence Act, the burden to establish facts relating to<\/p>\n
               smuggling which remain in the special knowledge of the<\/p>\n
               person concerned in smuggling, is on him and if he fails<\/p>\n
               to explain those facts, adverse inference of fact may<\/p>\n
               arise against him.\n<\/p>\n
          e)<\/p>\n
               The judgment of the Supreme Court in Vinod Solanki’s<\/p>\n
               case (supra) has no application to this case because<\/p>\n
               there the Supreme Court was dealing with FERA. That<\/p>\n
               judgment must be restricted to it’s peculiar facts.\n<\/p>\n
          f)   Apart from the judgment in Bhoormall’
\n                                                   s   case, the<\/p>\n
               respondents are relying on the following judgments :\n<\/p>\n
                 i)    State of Maharashtra v.        Natwarlal<\/p>\n
                       Damodar Soni, AIR<\/a> 1980 SC 593.\n<\/p>\n
                 ii)   Union of India v. Harshad Doshi, 2006 206
\n                       ELT 04.\n<\/p>\n
                 iii) KTMS Mohammad & Another v. Union of
\n                      India, (1992) 3 SCC 178.\n<\/p>\n
                 iv) K. Pavunny v. Asstt. Collector of Central<\/a><\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                      15<\/span><\/p>\n
                       Excise, (1997) 3 SCC 721.\n<\/p>\n
           g)   In view of the above, the concurrent view of the<\/p>\n
                authorities below does not deserve to be disturbed.\n<\/p>\n
    10.   Before we deal with the rival contentions it is necessary to<\/p>\n
    have a look at the Supreme Court’s judgments in Bhoormall’
\n                                                             s case<\/p>\n
    and in Vinod  Solanki’s<\/p>\n
                            case because while the respondents are<\/p>\n
    heavily relying on Bhoormalls’
\n                                  case, the petitioners’ case rests on<\/p>\n
    Vinod Solanki’
\n                 s case.\n<\/p>\n
          In Bhoormalls’s
\n                         case, according to the Customs Department<\/p>\n
    11.<\/p>\n
    smuggled goods were recovered from the premises of M\/s. Shah<\/p>\n
    Rupaji on a search conducted           by the officers on the basis of<\/p>\n
    information.    One Baboothmull, who was present replied that<\/p>\n
    he was not the owner of those goods and somebody next door<\/p>\n
    had left the goods there. Later one Bhoormall turned up to claim<\/p>\n
    the goods. Adjudication        proceedings were held in which<\/p>\n
    Bhoormall’s     solicitor   participated.      The Collector              while<\/p>\n
    conceding that the burden of proving the goods to be smuggled<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                            16<\/span><\/p>\n
    goods rested on the Department, held that such burden prima<\/p>\n
    facie stood discharged, as the circumstances irresistibly led to<\/p>\n
    the conclusion that the goods had been illicitly imported. Appeal<\/p>\n
    filed against the said             order was dismissed by the Central<\/p>\n
    Board of Revenue. Learned Single Judge dismissed the writ<\/p>\n
    petition   filed challenging        the said       order. In Letters Patent<\/p>\n
    Appeal, the Division Bench of the High Court held that the<\/p>\n
    onus to<\/p>\n
                prove that the goods had been smuggled was on the<\/p>\n
    department and that        it    had not shifted          on Bhoormall.            The<\/p>\n
    Supreme Court referred to Section 178-A of The Sea Customs<\/p>\n
    Act, 1878 which is similar to Section 123 of the Customs Act with<\/p>\n
    which we are concerned here. We will quote Section 178-A as well<\/p>\n
    as Section 123 of the Customs Act because that will show that the<\/p>\n
    ratio of Bhoormall’
\n                      s case is applicable to the present case also.\n<\/p>\n
    Section 178-A reads thus:\n<\/p>\n
                          “178-A. (1)   Where any  goods to    which
\n               this  section  applies   are  seized under this  Act in
\n               the reasonable  belief  that they are smuggled  goods,
\n               the  burden of  proving that  they  are  not smuggled
\n               goods shall be on the  person from whose possession
\n               the goods were seized.\n<\/p>\n
                        (2)         This   section   shall   apply   to   gold,\n\n\n\n\n                                                            ::: Downloaded on - 09\/06\/2013 14:32:39 :::<\/span>\n     AJN\n                                     17<\/span>\n\n          gold manufactures,         diamonds   and   other\n\n\n\n\n                                                                             \n          precious stones, cigarettes    and   cosmetics and any\n<\/pre>\n
          other goods which the Central Government may, by
\n          notification   in   the   Official   Gazette,   specify   in<\/p>\n
          this  behalf.\n<\/p>\n
          (3)         Every     notification     issued   under   sub-\n<\/p>\n
          section  (2)  shall   be laid   before   both  Houses  of
\n          Parliament,  as soon as may be after  it   is   issued.”\n<\/p>\n
          Section 123 of the Customs Act reads thus:\n<\/p>\n
                     “123. Burden   of   proof   in   certain
\n          cases. –  (1) Where any goods to which this section
\n          applies  are seized under this  Act in the reasonable
\n          belief that they are smuggled  goods, the burden of<\/p>\n
          proving that they are not smuggled goods shall be –\n<\/p>\n
          (a) in a case where such seizure is made from the
\n              possession of any person, –\n<\/p>\n
               (i) on   the   person   from   whose   possession   the<\/p>\n
                   goods were seized; and <\/p>\n
               (ii) if any person, other than the person from
\n                    whose   possession   the   goods   were   seized,<\/p>\n
                    claims to be the owner thereof, also on such
\n                    other person;\n<\/p>\n
          (b) in  any other case, on the person, if any,  who
\n              claims to be the owner of the goods so seized.]<\/p>\n
                    (2)     This   section   shall   apply   to   gold
\n          [and manufactures thereof] watches, and any other
\n          class of goods which the Central Government may by<\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                         18<\/span><\/p>\n
               notification in the Official Gazette, specify.”\n<\/p>\n
    12.        The Supreme Court observed that Section 178-A applies<\/p>\n
    to goods specified       in   sub-section    2.   With regard           to those<\/p>\n
    goods, if they are seized in the reasonable belief that they are<\/p>\n
    smuggled goods, the burden of proof that they are not such<\/p>\n
    goods shall     be on the person from whose possession they were<\/p>\n
    seized; but with regard to any other goods the rule in sub-section<\/p>\n
    (1)   of    Section 178-A would not apply            unless the           Central<\/p>\n
    Government had applied the same by notification in the Official<\/p>\n
    Gazette. Since no such notification was issued in the case before<\/p>\n
    it, the Supreme Court observed that in respect of such goods the<\/p>\n
    basic canons of criminal jurisprudence and natural justice would<\/p>\n
    apply.     The Supreme Court observed that in proceedings                        for<\/p>\n
    imposing penalties under Section 167(8) of the Sea Customs Act<\/p>\n
    to which Section 178-A does not apply the burden of proving that<\/p>\n
    the goods are smuggled goods is on the Department. However,<\/p>\n
    the law does not require the prosecution to prove the impossible.\n<\/p>\n
    The Department has to establish its case with such a degree of<\/p>\n
    probability that     a prudent man may on its basis believe in the<\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                           19<\/span><\/p>\n
    existence of the fact in issue. The Supreme Court further observed<\/p>\n
    that since it is difficult for the prosecution to prove facts which are<\/p>\n
    especially within the knowledge of the accused it is not obliged<\/p>\n
    to prove them as part of its primary burden. Paragraph 32 of<\/p>\n
    the judgment is material. It reads as under:\n<\/p>\n
                        “32.         Smuggling   is     clandestine
\n             conveying of goods to avoid   legal   duties.   Secrecy<\/p>\n
             and   stealth     being   its     covering   guards,   it   is
\n             impossible     for   the   Preventive     Department   to
\n             unravel   every   link   of   the   process.     Many   facts<\/p>\n
             relating     to   this     illicit       business   remain   in   the
\n             special   or   peculiar     knowledge   of   the   persons
\n             concerned   in   it.       On   the     principle       underlying
\n             Section 106, Evidence Act, the burden to establish<\/p>\n
             those facts  is cast on the person concerned, and, if<\/p>\n
             he fails   to establish   or explain   those facts,   an
\n             adverse inference of fact   may arise   against   him,
\n             which   coupled   with   the   presumptive   evidence
\n             adduced   by   the   prosecution   or   the   Department<\/p>\n
             would rebut the initial  presumption of innocence in
\n             favour of that person, and in the result,   prove him
\n             guilty.  As pointed out by Best (in  Law of Evidence’
\n             12th Edn. Article 320. page 291), the “presumption
\n             of   innocence   is,   no   doubt,   presumptio   juris;     but<\/p>\n
             every   day’s    practice     shows   that   it   may   be
\n             successfully encountered by the presumption of guilt
\n             arising from the recent (unexplained) possession of
\n             stolen   property,   though   the   latter     is     only   a
\n             presumption   of   fact.     Thus   the     burden   on   the
\n             prosecution or the Department may be considerably
\n             lightened  even by such presumptions of fact  arising
\n             in their  favour.   However, this  does not mean that<\/p>\n
                                                             ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                          20<\/span><\/p>\n
              the   special   or   peculiar   knowledge   of   the   person<\/p>\n
              proceeded against  will relieve the prosecution or the
\n              Department altogether of the burden of   producing
\n              some evidence in   respect   of that fact in issue.   It<\/p>\n
              will  only alleviate that burden, to discharge which,
\n              very slight  evidence  may suffice.”\n<\/p>\n
    13.       Thus the Supreme Court accepted that in respect of<\/p>\n
    goods which are not specified in subsection 2 of Section 178-A and<\/p>\n
    in respect of which no notification
\n                             ig                   is    issued by the Central<\/p>\n
    Government the burden of proving that they are not smuggled<\/p>\n
    goods lies on the Department. Referring to Section 106 of the<\/p>\n
    Indian Evidence Act,         which states that          when any fact               is<\/p>\n
    especially   within the knowledge of any person, the burden of<\/p>\n
    proving that fact is upon him, the Supreme Court observed that<\/p>\n
    failure to establish facts by a person which are within his special<\/p>\n
    knowledge will lead to an adverse inference being drawn against<\/p>\n
    him which coupled with the presumptive evidence adduced by the<\/p>\n
    Department would rebut the initial presumption of innocence in<\/p>\n
    favour of that person.      But the Supreme Court clarified that the<\/p>\n
    special or peculiar knowledge of the person proceeded against<\/p>\n
    will   not relieve    the Department altogether of the burden of<\/p>\n
    producing some evidence in respect of that fact in issue. It will only<\/p>\n
                                                          ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                    21<\/span><\/p>\n
    alleviate that burden to discharge which very slight evidence may<\/p>\n
    suffice.\n<\/p>\n
    14.        In Vinod Solanki’s
\n                                 case, the Supreme Court affirmed its<\/p>\n
    view in Bhoormall’
\n                     s case and went on to consider what would be<\/p>\n
    the effect of a retracted confession for the purpose of levy of<\/p>\n
    penalty under FERA. It is the contention of the respondent that<\/p>\n
    since this case deals with the provisions of FERA, it is not<\/p>\n
    applicable to the present case.      In our opinion, though the<\/p>\n
    provisions of FERA were involved in Vonod   Solanki’
\n                                                       s   case, the<\/p>\n
    general principles as regards evidentiary value of a retracted<\/p>\n
    confessional statement laid down therein can be considered in the<\/p>\n
    present case also.    In that case the appellant’s office premises<\/p>\n
    were searched. Search resulted in the recovery of Indian Currency<\/p>\n
    of Rs.265,000\/-.      The appellant was detained.             He made<\/p>\n
    confessional statements confirming that all the transactions in the<\/p>\n
    name of the two firms had been made by him but no import of<\/p>\n
    goods had taken place in the name of the said firms.                     He<\/p>\n
    confessed that he was responsible for remittances of the foreign<\/p>\n
    exchange.     He was, therefore, arrested for alleged violation of<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                   22<\/span><\/p>\n
    Sections 8(3) and Section 9(1) (a) of the FERA. He retracted his<\/p>\n
    confessional statement. Show cause notice was issued to him. He<\/p>\n
    contended that no reliance should be placed on the retracted<\/p>\n
    confession unless it is corroborated    substantially in material<\/p>\n
    particulars by some independent evidence.          The appropriate<\/p>\n
    authority relying on the confessional statement imposed penalty<\/p>\n
    on the appellant. The Tribunal confirmed the said order. The<\/p>\n
    Tribunal placed the burden of proving that the confession was<\/p>\n
    voluntary on the appellant. On appeal the High Court concurred<\/p>\n
    with the Tribunal’s view. The Supreme Court disagreed with the<\/p>\n
    High Court. The Supreme Court referred to Section 71(2) of the<\/p>\n
    FERA and observed that the burden of proof related to use of the<\/p>\n
    foreign exchange for the purpose for which permission                 was<\/p>\n
    granted to   acquire it and not to   possession.     There was no<\/p>\n
    reverse burden and no presumption of commission of an offence<\/p>\n
    under the FERA. The Supreme Court observed that the evidence<\/p>\n
    brought on record by way of confession which stood retracted must<\/p>\n
    be substantially corroborated by other independent and cogent<\/p>\n
    evidence. The Supreme Court further observed that initial burden<\/p>\n
    to prove that the confession was voluntary in nature would be on<\/p>\n
    the Department.    In the context of Section 106 of the Indian<\/p>\n
                                               ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span>
\n     AJN
\n                                     23<\/span><\/p>\n
    Evidence Act, the Supreme Court restated what it had stated in<\/p>\n
    Bhoormall’
\n             s case that the special and peculiar knowledge of the<\/p>\n
    person proceeded against would not relieve the prosecution or<\/p>\n
    the Department altogether of the burden of producing some<\/p>\n
    evidence in respect of the fact in issue. It may only alleviate the<\/p>\n
    burden to discharge and very slight evidence may suffice. The<\/p>\n
    Supreme Court further observed that to arrive at a finding as to<\/p>\n
    whether the retracted confessional statement is voluntary or not,<\/p>\n
    the court must bear in mind the attending circumstances which<\/p>\n
    would include the time of retraction, the nature thereof, the manner<\/p>\n
    in    which such retraction    has been made and other relevant<\/p>\n
    features. The Supreme Court further went on to say that mere<\/p>\n
    retraction of a confessional    statement may not be sufficient to<\/p>\n
    make the confessional statement irrelevant, but the court is<\/p>\n
    obligated to take into consideration    the pros and cons of the<\/p>\n
    confession and retraction made by the accused.\n<\/p>\n
    15.       The principles   which can be deduced from the above<\/p>\n
    judgments for the purpose of deciding the present case can be<\/p>\n
    summarised as under:\n<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:32:39 :::<\/span><\/p>\n
     AJN
\n                                     24<\/span><\/p>\n
          (1) Where any goods which are specified under<\/p>\n
              subsection (2) of Section 123 of the Customs Act,<\/p>\n
              1962 are seized under the reasonable belief that<\/p>\n
              they are smuggled goods, the burden of proving<\/p>\n
              that they are not smuggled goods shall be on the<\/p>\n
              person from whose possession the goods               are<\/p>\n
              seized.\n<\/p>\n
                        Such goods would obviously include<\/p>\n
              goods which are specified         by the Central<\/p>\n
              Government by notification in the Official Gazette.\n<\/p>\n
          (2) In case of other goods which are not covered by<\/p>\n
              subsection 2 of Section 123 and in respect of<\/p>\n
              which no notification is issued the basic cannons<\/p>\n
              of criminal jurisprudence and natural justice will<\/p>\n
              apply. The burden of proving that the goods are<\/p>\n
              smuggled will be on the Department.\n<\/p>\n
          (3) However, the Department has to establish its case<\/p>\n
              with such a degree of probability that a prudent<\/p>\n
              man may on its basis believe in the existence of<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                       25<\/span><\/p>\n
              the fact in issue.\n<\/p>\n
          (4) The Department is not obliged to prove facts<\/p>\n
              which are especially within the knowledge of the<\/p>\n
              proceedee as part of its primary burden because<\/p>\n
              under Section 106 of the Indian Evidence Act, the<\/p>\n
              burden of proving facts         which are      specially<\/p>\n
              within the knowledge of a person is on him.\n<\/p>\n
          (5) However, the special or peculiar knowledge of the<\/p>\n
              person proceeded against will        not relieve the<\/p>\n
              Department altogether of the burden of producing<\/p>\n
              some evidence in respect of that fact in issue. It<\/p>\n
              will only alleviate that burden, to discharge which<\/p>\n
              very slight evidence will suffice.\n<\/p>\n
          (6) The evidence         brought on record by way of<\/p>\n
              confession    which     stood   retracted    must       be<\/p>\n
              substantially corroborated      by other independent<\/p>\n
              and cogent evidence.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span><\/p>\n
     AJN
\n                                     26<\/span><\/p>\n
          (7) Initial burden to prove that the confession was<\/p>\n
              voluntary in nature is on the Department.\n<\/p>\n
          (8) To arrive at a finding as to whether the retracted<\/p>\n
              confessional statement is voluntary or not, the<\/p>\n
              court   must   bear    in   mind   the      attending<\/p>\n
              circumstances which would include the time of<\/p>\n
              retraction, the nature thereof, the manner in which<\/p>\n
              such retraction has been made and other relevant<\/p>\n
              features.\n<\/p>\n
          (9) The mere retraction of a confessional statement<\/p>\n
              may not be sufficient to make the confessional<\/p>\n
              statement irrelevant, but the court is obliged to<\/p>\n
              take into consideration the pros and cons of both<\/p>\n
              the confession and the retraction made by the<\/p>\n
              accused;\n<\/p>\n
    16.       We shall examine this case in the light of the above<\/p>\n
    principles. It is true that diamonds are not notified under Chapter<\/p>\n
    IV of the Customs Act nor are they notified under Section 125<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                      27<\/span><\/p>\n
    thereof.    Therefore, onus of proving that the diamonds are of<\/p>\n
    foreign origin and are smuggled into India is on the Department.\n<\/p>\n
    However, the Department has not to prove the impossible. It has<\/p>\n
    to establish it’s case with such a degree of probability that a<\/p>\n
    prudent man may on it’s basis believe in the existence of the fact in<\/p>\n
    issue (Bhoormall’
\n                    s case).\n<\/p>\n
    17.<\/p>\n
               None of the persons present at the office premises could<\/p>\n
    satisfactorily explain from whom the diamonds were purchased.\n<\/p>\n
    They did not give particulars of the sellers from whom the<\/p>\n
    diamonds were purchased.       These facts were within their special<\/p>\n
    or peculiar knowledge, which the Department cannot prove and is<\/p>\n
    not expected to prove. In view of the non-disclosure of facts which<\/p>\n
    were within the special knowledge of the persons from whom the<\/p>\n
    diamonds were seized, the burden to prove that the diamonds<\/p>\n
    were smuggled which undoubtedly rested on the Department is<\/p>\n
    alleviated. Very slight evidence is, therefore, sufficient to discharge<\/p>\n
    it.   The circumstances which the Department is relying on to<\/p>\n
    discharge this burden need to be now examined.                  There are<\/p>\n
    certain glaring circumstances which discharge the alleviated<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                    28<\/span><\/p>\n
    burden resting on the Department. It is pertinent to note that large<\/p>\n
    quantity of diamonds valued at Rs.79,40,506.25 was found in the<\/p>\n
    search. The diamonds were not covered by vouchers. Loose chits<\/p>\n
    were recovered by the officers.      They contained accounts of<\/p>\n
    diamonds.    But the seized diamonds were not reflected in the<\/p>\n
    normal books of accounts of the firm. There was a big discrepancy<\/p>\n
    in the physical stock, stock ledger and the books of accounts. Mr.<\/p>\n
    Mahendra Gandhi, the accountant of M\/s. Ambalal & Co. stated<\/p>\n
    that the diamonds were recovered under REP licence. However,<\/p>\n
    no duty paying documents were forthcoming to establish the<\/p>\n
    legitimate nature of the diamonds. It is pertinent to note that even<\/p>\n
    under searching cross-examination seizing officer Shri Sanar has<\/p>\n
    maintained that he was not acting merely on the basis of<\/p>\n
    information but the attending circumstances were so overwhelming<\/p>\n
    and strong as to give rise to a reasonable belief that they were<\/p>\n
    smuggled into India. The employee of the firm, Raju, who was<\/p>\n
    standing outside the shop with huge quantity of diamonds tried to<\/p>\n
    run away. He had to be apprehended. He stated that he had<\/p>\n
    instructions to run away. All these circumstances in our opinion,<\/p>\n
    are sufficient to substantiate the case of the Department that the<\/p>\n
    diamonds were smuggled and the argument that their origin was<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                     29<\/span><\/p>\n
    not established by their examination, must be rejected.\n<\/p>\n
    18.      We must now go to the confessional statements. Apart<\/p>\n
    from the above circumstances, there are confessional statements<\/p>\n
    of the proceedees in which they have admitted that the diamonds<\/p>\n
    were smuggled into India. Since the confessional statements have<\/p>\n
    been retracted the initial burden to prove that they are voluntary in<\/p>\n
    nature is on the Department. But to arrive at that finding the court<\/p>\n
    has to bear in mind the attending circumstances. The Department<\/p>\n
    can rely on the attending circumstances to show the voluntary<\/p>\n
    nature of the confessional statement. The court has to weigh the<\/p>\n
    pros and cons of the confession and retraction. It must evaluate<\/p>\n
    both.    It must find out whether confessional statement is<\/p>\n
    substantially corroborated by other cogent evidence.           If there is<\/p>\n
    such corroboration, it can be relied upon.\n<\/p>\n
    19.      We have already narrated the circumstances which<\/p>\n
    substantiate the Department’s case.      They provide the needed<\/p>\n
    corroboration to the confessional statements.      Besides from the<\/p>\n
    order of the Collector of Customs, it is apparent that he has<\/p>\n
    considered the confessions as well as the retractions. After going<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                     30<\/span><\/p>\n
    through the confessional statements of Maganbhai Patel and<\/p>\n
    Ambalal Patel and their retractors, he has observed that there was<\/p>\n
    no denial of the fact that Rajesh Bhamre alias Raju, the employee<\/p>\n
    of the firm who was standing outside the premises with a bag of<\/p>\n
    diamonds had instructions to run away in case he finds the Custom<\/p>\n
    Officers approaching.     It has also not been denied that the<\/p>\n
    diamonds valued at Rs.79,40,506.25 were recovered from him and<\/p>\n
    no document regarding their illicit acquisition was produced.\n<\/p>\n
    Ownership of these diamonds was claimed by Maganbhai Patel.\n<\/p>\n
    20.      So far as the retraction of the appellant Shailesh is<\/p>\n
    concerned, the Collector of Customs has rightly observed that he<\/p>\n
    has stated that “Therefore the veracity of the statements are<\/p>\n
    disputed and the said statements with regard to incorrect\/improper<\/p>\n
    details are duly retracted”. This is a very vague retraction. The<\/p>\n
    incorrect \/ improper details claimed by him have not been specified<\/p>\n
    by him in the letter. He has also not specifically denied the illicit<\/p>\n
    nature of the diamonds.     In the facts and circumstances of the<\/p>\n
    case, we are not inclined to accept the submission of Mr. Kanuga<\/p>\n
    that the confessional statements were recorded while the<\/p>\n
    appellants were in detention and they are involuntary. There is<\/p>\n
                                                  ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                      31<\/span><\/p>\n
    enough corroborative evidence on record to establish that the<\/p>\n
    confessional statements are voluntary statements and that the<\/p>\n
    retractions are clearly an afterthought.\n<\/p>\n
    21.       Mr. Kanuga contended that the CEGAT has wrongly<\/p>\n
    observed that petitioner 1 had no documentary evidence to<\/p>\n
    substantiate his case that he had purchased the seized diamonds<\/p>\n
    from a trader in Navsari. Mr. Kanuga submitted that he had given<\/p>\n
    the names of the suppliers. Both the petitioners had forwarded<\/p>\n
    letters to the Department along with documents but the Department<\/p>\n
    did not verify them.\n<\/p>\n
    22.       We have no hesitation in rejecting this submission. The<\/p>\n
    bonafides of the Department can be seen from the fact that the<\/p>\n
    Department released diamonds unconditionally where petitioner 1<\/p>\n
    submitted documents to support legal acquisition. However, where<\/p>\n
    he could not produce such documents, those diamonds were<\/p>\n
    seized.   It is also pertinent to note that the Commissioner of<\/p>\n
    Customs has stated that he had gone through the documents<\/p>\n
    belatedly supplied by the petitioners.     He has stated that invoices<\/p>\n
    of M\/s. Mayank Diamonds Private Limited for 110.8 carats had<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                      32<\/span><\/p>\n
    reference to jhangad slip dated 14\/3\/1991 and a copy of jhangad<\/p>\n
    slip is also available. He has further observed that the quantity<\/p>\n
    shown under jhangad slip dated 14\/3\/1991 and invoice dated<\/p>\n
    30\/3\/1991 is covered in 5 packets whereas the corresponding<\/p>\n
    consignment under seizure was covered in 16 packets. He has<\/p>\n
    observed that segregation of diamonds is made on the basis of<\/p>\n
    quality and it is unlikely that the said documents related to<\/p>\n
    diamonds under seizure.\n<\/p>\n
                           ig      He has further observed that the<\/p>\n
    documents produced could not be linked to the consignment of<\/p>\n
    diamonds under seizure and that the said documents are not<\/p>\n
    genuine documents. These observations are not disturbed by the<\/p>\n
    CEGAT. We concur with this view. In our opinion, apart from the<\/p>\n
    fact that the documents produced by the petitioners do not bear out<\/p>\n
    the petitioners’ case, the time taken to furnish them reflects on their<\/p>\n
    authenticity.\n<\/p>\n
    23.      Belated attempt made to reconcile the stock of diamonds<\/p>\n
    by enclosing copies of documents by M\/s. Ambalal & Co. vide their<\/p>\n
    letter has also rightly been repelled by the Collector of Customs.\n<\/p>\n
    Mr. Kanuga’s case that the petitioners have nothing to do with M\/s.\n<\/p>\n
    Ambalal & Co. can never stand the scrutiny of the court in view of<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                    33<\/span><\/p>\n
    the fact that they entered the premises of M\/s. Ambalal & Co. with<\/p>\n
    diamonds which could not be accounted for.\n<\/p>\n
    24.      So far as M\/s.   Aakash   Enterprises   case   (supra), is<\/p>\n
    concerned in that case this court has reiterated what the Supreme<\/p>\n
    Court has said in Bhoormall’
\n                               s   case that in case of non-notified<\/p>\n
    goods even if a person who is to be proceeded against, has a<\/p>\n
    special or peculiar knowledge of facts, the Department is not<\/p>\n
    relieved of its burden to establish that the goods have entered into<\/p>\n
    the country illegally and that the said goods were smuggled. The<\/p>\n
    Supreme Court has clarified that special knowledge only alleviates<\/p>\n
    that burden, to discharge which very slight evidence will suffice.\n<\/p>\n
    We have examined the present case in the light of this observation<\/p>\n
    and come to a conclusion that the Department has discharged the<\/p>\n
    burden. M\/s. Aakash Enterprises case, therefore, does not help<\/p>\n
    the petitioners. For the same reasons, judgment of this court in<\/p>\n
    Shri   Ganesh   Enterprises’
\n                                 case   (supra) also does not help the<\/p>\n
    petitioners.\n<\/p>\n
    25.      In the ultimate analysis we are of the view that the<\/p>\n
                                                 ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                           34<\/span><\/p>\n
    concurrent finding of fact recorded by the authorities below does<\/p>\n
    not call for interference. In this connection, we may again refer to<\/p>\n
    Bhoormall’
\n             s   case. In that case, the Division Bench of the High<\/p>\n
    Court felt that the circumstantial evidence was not adequate<\/p>\n
    enough to establish the smuggled character of the goods, beyond<\/p>\n
    doubt and, hence, it interfered with it in its jurisdiction under Article<\/p>\n
    226 of the Constitution of India.           Disapproving the High Court’s<\/p>\n
    approach, the Supreme Court observed as under :\n<\/p>\n
             “37.        Even   if   the   Division   Bench   of   the   High
\n             Court felt that this circumstantial evidence was not
\n             adequate enough to establish the smuggled character<\/p>\n
             of the goods, beyond doubt, then also, in our opinion
\n             that   was  not   a   good   ground   to   justify   interference<\/p>\n
             with the Collectors order in the exercise of the writ
\n             jurisdiction   under   Article   226   of   the   Constitution.
\n             The function of weighing the evidence or considering<\/p>\n
             its sufficiency was the business of the Collector or the
\n             appellate authority which was the final tribunal of
\n             fact.  “For weighing evidence and drawing inferences
\n             from it”, said Birch, J. in R.   v.   Madhub Chunder
\n             (1873) 21 WR Cr. 13, 19, “there can be no canon.<\/p><\/blockquote>\n
             Each case presents its own peculiarities and in each
\n             common   sense  and  shrewdness  must  be  brought  to
\n             bear   upon   the   facts   elicited”.     It   follows   from   this
\n             observation   that   so   long   as   the   Collector’s
\n             appreciation   of   the   circumstantial   evidence   before
\n             him was not illegal, perverse or devoid of common
\n             sense, or  contrary to  rules of natural  justice,  there
\n             would be no warrant for disturbing his finding under<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>
\n     AJN
\n                                           35<\/span><\/p>\n
             Article   226.     The   Collector’s
\n                                                  order   was   not   of   this<\/p>\n
             kind.”\n<\/p>\n
    26.      In this case, the Collector’s appreciation of evidence<\/p>\n
    appears to us to be unassailable. It is neither illegal, nor perverse<\/p>\n
    or devoid of common sense or contrary to rules of natural justice.\n<\/p>\n
    It is confirmed by the CEGAT. Concurrent finding of fact deserves<\/p>\n
    to be upheld. In our opinion, the petitioners have made out no<\/p>\n
    case warranting our interference with the impugned orders.\n<\/p>\n
    Hence, the petition is dismissed.\n<\/p>\n
                                                [SMT. RANJANA DESAI, J.]<\/p>\n
                                                    [J.P. DEVADHAR, J.]<\/p>\n
                                                            ::: Downloaded on – 09\/06\/2013 14:32:40 :::<\/span>\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Dhobiwad vs House on 23 April, 2009 Bench: Ranjana Desai, J.P. Devadhar AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2152 OF 1996 1 Sailash Amulakh Jogani of ) Gujarat, Indian Inhabitant, ) residing at 402, Vasuphara Asha ) Nagar, Navsari, Dist. Valsad, ) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-73409","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nDhobiwad vs House on 23 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dhobiwad vs House on 23 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"og:url\" content=\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\" \/>\n<meta property=\"og:site_name\" content=\"Free Judgements of Supreme Court & High Court | Legal India\" \/>\n<meta property=\"article:publisher\" content=\"https:\/\/www.facebook.com\/LegalindiaCom\/\" \/>\n<meta property=\"article:published_time\" content=\"2009-04-22T18:30:00+00:00\" \/>\n<meta property=\"article:modified_time\" content=\"2018-07-04T19:27:53+00:00\" \/>\n<meta property=\"og:image\" content=\"https:\/\/i0.wp.com\/www.legalindia.com\/judgments\/wp-content\/uploads\/sites\/5\/2025\/09\/legal-india-icon.jpg?fit=512%2C512&ssl=1\" \/>\n\t<meta property=\"og:image:width\" content=\"512\" \/>\n\t<meta property=\"og:image:height\" content=\"512\" \/>\n\t<meta property=\"og:image:type\" content=\"image\/jpeg\" \/>\n<meta name=\"author\" content=\"Legal India Admin\" \/>\n<meta name=\"twitter:card\" content=\"summary_large_image\" \/>\n<meta name=\"twitter:creator\" content=\"@legaliadmin\" \/>\n<meta name=\"twitter:site\" content=\"@Legal_india\" \/>\n<meta name=\"twitter:label1\" content=\"Written by\" \/>\n\t<meta name=\"twitter:data1\" content=\"Legal India Admin\" \/>\n\t<meta name=\"twitter:label2\" content=\"Est. reading time\" \/>\n\t<meta name=\"twitter:data2\" content=\"31 minutes\" \/>\n<script type=\"application\/ld+json\" class=\"yoast-schema-graph\">{\"@context\":\"https:\/\/schema.org\",\"@graph\":[{\"@type\":\"Article\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009#article\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\"},\"author\":{\"name\":\"Legal India Admin\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#\/schema\/person\/0bfdffe9059fb8bb24a86d094609c5ea\"},\"headline\":\"Dhobiwad vs House on 23 April, 2009\",\"datePublished\":\"2009-04-22T18:30:00+00:00\",\"dateModified\":\"2018-07-04T19:27:53+00:00\",\"mainEntityOfPage\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\"},\"wordCount\":6097,\"commentCount\":0,\"publisher\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#organization\"},\"articleSection\":[\"Bombay High Court\",\"High Court\"],\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"CommentAction\",\"name\":\"Comment\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009#respond\"]}]},{\"@type\":\"WebPage\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\",\"name\":\"Dhobiwad vs House on 23 April, 2009 - Free Judgements of Supreme Court & High Court | Legal India\",\"isPartOf\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\"},\"datePublished\":\"2009-04-22T18:30:00+00:00\",\"dateModified\":\"2018-07-04T19:27:53+00:00\",\"breadcrumb\":{\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009#breadcrumb\"},\"inLanguage\":\"en-US\",\"potentialAction\":[{\"@type\":\"ReadAction\",\"target\":[\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009\"]}]},{\"@type\":\"BreadcrumbList\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/dhobiwad-vs-house-on-23-april-2009#breadcrumb\",\"itemListElement\":[{\"@type\":\"ListItem\",\"position\":1,\"name\":\"Home\",\"item\":\"https:\/\/www.legalindia.com\/judgments\/\"},{\"@type\":\"ListItem\",\"position\":2,\"name\":\"Dhobiwad vs House on 23 April, 2009\"}]},{\"@type\":\"WebSite\",\"@id\":\"https:\/\/www.legalindia.com\/judgments\/#website\",\"url\":\"https:\/\/www.legalindia.com\/judgments\/\",\"name\":\"Free Judgements of Supreme Court & High Court | Legal India\",\"description\":\"Search and read the latest judgements, orders, and rulings from the Supreme Court of India and all High Courts. 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