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2011 (4) TMI 1038 - HC - Customs


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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