1985 (4) TMI 79 - HC - Customs

Court upholds retrospective application of Customs Act, finds no violation of constitutional rights

The court dismissed the writ petition challenging the retrospective application of Section 123 of the Customs Act. It held that the retrospective ... Smuggling - Detention - Burden of proof Issues:1. Retrospective application of Section 123 of the Customs Act and its impact on Articles 20 and 21 of the Constitution.Detailed Analysis:In this case, the petitioner challenged the retrospective application of Section 123 of the Customs Act, contending that it would violate Articles 20 and 21 of the Constitution. The petitioner had been detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The key argument presented was that the provisions of Section 123 were not applicable at the time the zip fasteners were seized from the petitioner's custody. It was highlighted that a notification making Section 123 applicable was issued after the seizure of the goods. The petitioner's counsel argued that the retrospective operation of Section 123 would contravene Article 20(1) of the Constitution, which prohibits conviction for an act that was not an offense at the time of its commission. However, the Advocate General contended that Article 20(1) was not applicable in this case as it pertained to detention, not conviction. The court agreed with the Advocate General's interpretation of Article 20(1) and dismissed the petitioner's argument on this ground.Regarding the impact on Article 21 of the Constitution, the petitioner's counsel argued that the retrospective application of Section 123 would infringe on the right to liberty guaranteed under Article 21. The court examined whether the procedure established by law, including the retrospective application of Section 123, was just, fair, and reasonable. Reference was made to a Supreme Court decision where a similar issue had been considered. The Supreme Court had ruled that the retrospective application of Section 123 in a prosecution under the Customs Act was not unfair or unreasonable. The court in the present case concurred with the reasoning of the Supreme Court and held that the retrospective operation of Section 123 did not violate Article 21 of the Constitution. It was emphasized that Section 123(1) only created a rebuttable presumption regarding seized goods being smuggled, and the burden of proof could be discharged by the person in possession of the goods. Drawing parallels with provisions in the Evidence Act, the court found the procedure under Section 123(1) to be just, fair, and reasonable, aligning with the requirements of Article 21.Ultimately, the court dismissed the writ petition on its merits and did not entertain the argument that the petition was not maintainable due to a previous dismissal. The judgment concluded that the retrospective application of Section 123 of the Customs Act did not violate Articles 20 and 21 of the Constitution, thereby rejecting the petitioner's contentions on these grounds.