This is an appeal against acquittal preferred by the Assistant Collector of Customs, Customs House, Madras against the acquittal of the respondent in respect of an offence under Section 135(1)(b) of the Customs Act.


2.On 6th June, 1978, the officers attached to the Madras Customs House, on information, searched the godown belonging to the accused which is situated at No. 1, Narayana Mudali Lane, Madras-1, in the presence of independent witnesses. The accused is a partner of O.K. Agencies occupying the godown. During the search, 776 dozens of table-tennis balls of Chinese origin were recovered, and when questioned, the accused produced an invoice dated 4th August, 1976 which covered 950 dozens of table-tennis balls purported to have been issued by M/s. Allied Supply Syndicate of Calcutta. The accused merely showed the invoice and refused to handover the same to the Customs Officers. Accordingly, the 776 dozens of table-tennis balls were seized as they were clearly of foreign origin and since the accused was not in a position to account for the same. Therefore, the Customs Officers held that they were smuggled goods worth about Rs. 14, 000.


3.Later, the customs department verified at Calcutta whether the Allied Supplies Syndicate of Calcutta had sold the table-tennis balls to the accused herein at any time, but the Department found that the name was a fictitious firm and non-existent. The sales tax numbers mentioned in the invoice belonged to some other company. Therefore, the customs department summoned the accused and interrogated him. The accused gave a statement that in or about-July, 1976, a representative of M/s. Allied Supply Syndicate came to him and booked some orders for supplying 1, 000 dozens of table-tennis balls. According to the accused, no receipt was given by the representative. One month later, the accused gave a further statement that he did not know anything about M/s. Allied Supply Syndicate at Calcutta and that he had no knowledge as to how his vendor acquired the foreign goods which are prohibited.


4.A show cause notice was issued to the accused and after receiving the reply, the Assistant Collector, Customs passed an order of adjudication on 16th July, 1979 and confiscated the goods and imposed a penalty of Rs. 2, 000. Subsequently, the department followed it up with a prosecution under Section 135(1)(b) of the Customs Act.


5.The prosecution examined four witnesses and all the four of them are Preventive Officers attached to the Customs House, Madras. The accused admitted before the trial court the search and the seizure and further stated that he had dealings with M/s, Allied Supply Syndicate at Calcutta.


6.After framing of the charges, two more officers were examined as P. Ws. 5 and 6 who spoke to the statement given by the accused. The accused stated that the statement was obtained by the customs authorities and that he does not know the contents of the same. The accused then examined one defence witness as D.W.1 who is none else than his own clerk.


7.Learned Chief Metropolitan Magistrate held that the prosecution has not proved to the hilt that the goods seized were smuggled ones, but he came to the conclusion that the mere possession of the foreign articles by the accused was not an offence. Consequently, the accused was acquitted and hence the appeal against the acquittal by the customs department.


8.Now, the question for determination is, whether there is any compelling reason for interfering with the order of acquittal passed by the lower court.


9.The charge against the accused is under Section 135(1)(b) of the Customs Act for acquiring possession of prohibited goods which the respondent knows or has reason to believe, are liable to confiscation under Section 111(c) of the said Act. Section 111 of the Customs Act deals with goods which are liable for confiscation. In particular, any dutiable or prohibited goods found in possession of any person unless duly accounted for, are liable to confiscation. Now, it is common ground that the respondent herein, namely Dharampal Jain had stored in his godown at Madras 776 dozens of table-tennis balls of Chinese origin and he was admittedly in possession of the same. The said goods were seized by the customs authorities during the search on 6th June, 1978. Thus, the possession and seizure of the goods are not disputed. On the other hand, the accused tried to give an explanation that he had purchased the same under an invoice purported to have been issued by one M/s. Allied Supply Syndicate, Calcutta. The customs authorities verified the name of the seller at the other end and found that it was a fictitious firm and that the sales tax numbers, etc., found in the invoice were not assigned to the said firm and that it was clearly a manipulation. The prosecution examined six witnesses on its side. All of them are officers of the customs department. These officers were examined to prove that the goods were of foreign origin and that they were prohibited Items, that the possession of those articles by the respondent/accused was not accounted for and that the alleged invoice covering the goods was a bogus one. The learned Magistrate held that the table-tennis balls seized in the case are not notified goods under Section 123 of the Customs Act and that there is no direct evidence to show that the goods have been smuggled.


10.I have heard learned Counsel for the customs department and the learned Counsel for respondent/accused. I am satisfied that the reasoning and the conclusion of the trial court are clearly unsustainable and that they require interference in the interest of justice.


11.As already stated, the possession and seizure are admitted and the invoice was found to be a bogus one. Admittedly, the respondent had no permit to import such goods from foreign countries. Though the accused put forward a story that he purchased the goods through a broker, he could not even furnish the name of the broker, let alone the address. Section 3 of the Imports and Exports (Control) Act says that the Central Government may, by order publish in the official Gazette, make provisions for prohibiting, restricting or otherwise controlling in all cases or in specified classes of cases............the import and export of goods specified therein. Clause 2 of Section 3 of the said Act says that all goods to which any order under sub-section (1) applies shall be deemed to be goods of which the import or export has been prohibited under Section 11 of the Customs Act. Appendix-2 in Schedule 2, Heading No. 97.04 relates to appliances, apparatus, accessories for sports and outdoor games. Heading No. 97.04 includes equipment for games for adults and children including billiard-tables and table-tennis requisites. Thus, the goods in question, namely table-tennis balls is a banned Item under Heading No. 97.04 stated above. The lower court has committed a grievous error in holding that table-tennis ball is not a notified Item and, therefore, the prosecution had failed. The lower court has lost sight of the fact that it is a banned Item, and when a person is in possession of such a banned Item, the presumption under the Act applies and the burden shifts on the person to account for possession of the same lawfully and licitly. On account of this fundamental wrong approach, the lower court has acquitted the accused holding that the prosecution must prove the actual smuggling of goods. Virtually, this is asking for an impossibility, and that is why the Legislature, in its wisdom, has shifted the burden on the accused to account for the possession when once a banned Item is found in possession of any person. This is precisely where Section 106 of the Evidence Act comes into play and the burden of proving the fact especially within the special knowledge of the accused is upon him. It is futile to expect the prosecutor in a customs offence to prove in what manner and wherefrom the goods arrived on the Indian soil. In this case, the prosecution has proved that the goods are of foreign origin and that the accused had no permit to import the same and, therefore, Section 106 of the Evidence Act intervenes and shifts the burden on the accused. Section 3 of the Imports and Exports (Control) Act also raises a presumption against the accused unless it is rebutted.


12.On merits, the prosecution has proved the offence beyond all reasonable doubt. P.W. 1 is a Customs Officer at Madras who has spoken to the search and the seizure of the goods in question. He found five dealwood cases in the godown belonging to the respondent/accused, and when they were opened, they were found to contain table-tennis balls of foreign origin. The dealwood boxes are M.Os. 1 to 5 and M.O. 6 series are the table-tennis balls. P.W. 2 is a Senior Grade Officer who assisted P.W. 1, and he has spoken to the invoice shown by the accused said to be covering the goods, but that the accused refused to

part with it. The witness has stated that the accused gave a voluntary statement Ex.P. 4 after consulting his own lawyer. P.W.3 is another officer of the customs department who has stated that the accused later appeared before him and gave a voluntary statement in English under Exs. P.8 and P.9. He says that he wrote to the Department at Calcutta for verification with 135(l)(b) of the Customs Act. 16.With regard to the sentence, the offence does not call for mandatory imprisonment, and it is noticed that the goods have been confiscated and the respondent was already fined Rs. 2, 000 by the adjudicator. Therefore, sentence of imprisonment is not called for, and in my opinion, a fine of Rs. 2, 000 would amply meet the ends of justice. Accordingly the appeal is allowed, the order of acquittal of the respondent/accused is set aside and the respondent is convicted and sentenced to pay a fine of Rs. 2, 000, in default to suffer R.I. for 3 months. Time 1 month from the date of communication.