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2011 (4) TMI 1038 - HC - CustomsAcquittal - offences punishable under Section 135(1)(a)and 135(1)(b) of the Customs Act. - held that - the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Customs Act, there bars to be a legal presumption of culpable mental state raised against the accused. Evidence - admission made by accused - section 21 and 31 of Evidence Act - held that - admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions. From the above provision, it is made clear that the admission can be made use of only against the maker of the statement and the same cannot be used in his favour. Discharge of burden to prove - Section 106 of the Evidence Act - held that - The said burden could have been discharged by the accused by examining himself as a witness before the Court. But, in view of Section 315, Cr.P.C., no adverse inference could be drawn against the accused for failure to examine himself as defence evidence. At the same time, the said burden could have been discharged by examining the other persons - When they have not been examined and there is no explanation offered before this Court for the same, I have to hold that the burden has not been discharged at all by the accused to prove that the gold bars and the silver bars were handed over to him by those persons after paying necessary customs duty. Simply because there is some delay in the sanction order, which is formal in nature, it cannot be held that the entire prosecution is vitiated. The judgment of the trial Court acquitting the respondent under Section 135(1)(b) of the Customs Act, is set aside and the respondent is convicted for offence under Section 135(1)(b) of the Customs Act and he is sentenced to imprisonment for the period already undergone and to pay a fine of ₹ 75,000/- (Rupees seventy-five thousand only) and in default to undergo rigorous imprisonment for six months. To this extent, the appeal stands allowed.
Issues Involved:
1. Discrepancy between the gold bars seized and those produced in court. 2. Admissibility of statements made by Mr. Samsudin Bin-Mohamed and the accused. 3. Validity and relevance of Exhibit P.12 (customs duty receipt). 4. Burden of proof and presumption of culpable mental state. 5. Defective sanction order. 6. Defective charges under Section 135(1)(a) and 135(1)(b) of the Customs Act. 7. Appropriate sentence for the convicted offense. Issue-wise Detailed Analysis: 1. Discrepancy Between the Gold Bars Seized and Those Produced in Court: The trial court acquitted the accused partly on the ground that there was a discrepancy between the gold bars seized from the accused and those produced in court. However, the High Court found this conclusion perverse, noting that P.W.1 had clearly identified the gold bars (M.O.1 series) as those seized from the accused's house. The accused did not dispute this fact during cross-examination or when questioned under Section 313, Cr.P.C. Therefore, the High Court concluded that the gold bars produced in court were indeed those seized from the accused. 2. Admissibility of Statements Made by Mr. Samsudin Bin-Mohamed and the Accused: The trial court relied on the statement made by Mr. Samsudin Bin-Mohamed (Exhibit P.11) to acquit the accused. However, the High Court found this statement inadmissible under Section 138B of the Customs Act, as Mr. Samsudin Bin-Mohamed was not examined as a witness. Similarly, the statement made by the accused (Exhibit P.10) was found inadmissible as it could not be used in his favor under Section 21 of the Evidence Act. The High Court held that these inadmissible statements could not be relied upon to exonerate the accused. 3. Validity and Relevance of Exhibit P.12 (Customs Duty Receipt): The High Court scrutinized Exhibit P.12, a receipt for customs duty allegedly paid by Mr. Samsudin Bin-Mohamed for the gold bars. The court found that the description in Exhibit P.12 did not match the gold bars seized (M.O.1 series). Moreover, Mr. Samsudin Bin-Mohamed was not examined to corroborate the relevance of Exhibit P.12 to the seized gold bars. Consequently, the High Court concluded that Exhibit P.12 did not discharge the accused's burden of proof. 4. Burden of Proof and Presumption of Culpable Mental State: Under Section 138A of the Customs Act, a presumption of culpable mental state is raised against the accused. The High Court held that the accused failed to rebut this presumption as he did not produce any positive evidence or examine relevant witnesses like Mr. Samsudin Bin-Mohamed, Mr. K. Mohan, Mr. Kumarasamy, and Mr. Mathiyalagan. The court emphasized that the accused had not proven that the gold and silver bars were lawfully possessed after paying customs duty. 5. Defective Sanction Order: The accused argued that the sanction order was defective and lacked detailed documentation. The High Court examined the sanction order and found it detailed and reflective of the sanctioning authority's application of mind. The court held that the non-examination of the sanctioning authority did not vitiate the prosecution, as the sanction order was comprehensive and valid. 6. Defective Charges Under Section 135(1)(a) and 135(1)(b) of the Customs Act: The High Court agreed with the learned Special Public Prosecutor that the accused could not be convicted under both Section 135(1)(a) and 135(1)(b) simultaneously. The court focused on Section 135(1)(b), which pertains to dealing with goods liable to confiscation. The court found sufficient evidence to convict the accused under Section 135(1)(b) but not under Section 135(1)(a). 7. Appropriate Sentence for the Convicted Offense: Considering the accused's age, health condition, and the prolonged duration of the trial, the High Court took a lenient view on sentencing. The court imposed a sentence of imprisonment for the period already undergone and a fine of Rs. 75,000, with a default sentence of six months rigorous imprisonment. The court referenced similar judgments where leniency was shown due to prolonged litigation and other mitigating factors. Conclusion: The High Court set aside the trial court's acquittal under Section 135(1)(b) of the Customs Act, convicting the accused and imposing a fine along with the period already undergone as imprisonment. The acquittal under Section 135(1)(a) was confirmed. The court allowed four weeks for the payment of the fine, failing which the trial court was instructed to enforce the default sentence.
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