1969 (2) TMI 174 - HC - Customs

Summary

Issues:
Appeal against acquittal under Section 185(b)(ii) of the Customs Act, 1962.

Analysis:
1. The prosecution appealed against the acquittal of accused No. 1 under Section 185(b)(ii) of the Customs Act, 1962. The accused was found carrying 50 bars of gold with foreign markings upon his arrival in Baroda. The Magistrate convicted accused No. 1 based on the presumption under Section 128, while the Sessions Judge acquitted him as the goods were seized by the Police, not Customs authorities. The appeal challenged this decision. The issue revolved around the applicability of the presumption under Section 128 based on the seizure of goods by the Police rather than Customs authorities.

2. The judgment analyzed the sequence of events leading to the seizure of the gold from accused No. 1. It was established that the goods were seized by the Police, not Customs authorities. The panchanama Ex. 16 was deemed a document of delivery, not seizure. As per Section 128, the burden of proving goods are not smuggled lies with the person from whom they were seized under the Act. Since the seizure was by the Police under the Criminal Procedure Code, the presumption under Section 128 did not apply. The judgment cited a Supreme Court decision to support this interpretation, emphasizing the importance of goods being seized by Customs authorities to trigger the presumption.

3. Section 128 of the Customs Act was scrutinized to determine the conditions for the presumption of goods being smuggled. The judgment highlighted that for the presumption to apply, the goods must be seized by Customs authorities under the Act. The decision of the Supreme Court in Gian Chand v. State of Punjab was referenced to clarify that the burden of proof shifts to the accused only when goods are seized by Customs authorities. The judgment dismissed arguments citing other court decisions, emphasizing the specific circumstances of the case where Police, not Customs, seized the goods.

4. The judgment addressed the argument regarding the foreign markings on the gold bars as proof of foreign origin. It cited a Privy Council decision to exclude markings as hearsay evidence for determining the country of origin. Reports from the Mint Master were also dismissed as they lacked evidentiary value without the Mint Master's examination. The prosecution failed to provide substantial evidence proving the gold was smuggled. Possession alone was deemed insufficient to establish the essential ingredient of the offense. The Sessions Judge's decision to acquit the accused was upheld based on the lack of evidence proving the gold was smuggled.

5. The appeal was dismissed, affirming the Sessions Judge's decision to acquit accused No. 1 due to the prosecution's failure to prove the essential elements of the offense. The judgment concluded that the presumption under Section 128 did not apply in this case, as the goods were seized by the Police, not Customs authorities.