1972 (2) TMI 96 - HC - Customs

Summary

Issues Involved:
1. Legality of search and seizure.
2. Burden of proof under Section 123 of the Customs Act.
3. Proof of the seized gold being smuggled.
4. Voluntariness and truthfulness of the accused's statement.
5. Proof of possession and conscious possession of the accused.
6. Compliance with procedural requirements under the Customs Act and Criminal Procedure Code.

Detailed Analysis:

1. Legality of Search and Seizure:
The search and recovery of the articles were held to be illegal. The search was conducted by P.W.1, who was not authorized under Section 105 of the Customs Act. The Assistant Collector authorized P.W.4, but P.W.1 conducted the search and recovered the items, which is not permissible under the Act. Additionally, the search did not comply with Section 103 of the Criminal Procedure Code, as one of the attestors to the search list was fictitious, and the other was not an inhabitant of the locality, violating the requirement for the presence of two or more respectable inhabitants of the locality.

2. Burden of Proof under Section 123 of the Customs Act:
Section 123 shifts the burden of proof to the accused to show that the seized goods are not smuggled, provided certain conditions are met. These conditions include the seizure of goods under the Act and the reasonable belief that they are smuggled. The court found that the prosecution did not establish a reasonable belief that the goods were smuggled. The authorisation (Ext. P-6) did not specify that gold was secreted, and there was no evidence that the officer had a reasonable belief at the time of seizure.

3. Proof of the Seized Gold Being Smuggled:
The prosecution failed to prove that the seized items (M.Os 2 and 3) were foreign gold. The gold was tested by one Mathew, whose report (Ext. P-5) was proved through Ramaswamy, who lacked knowledge about gold testing. The specific gravity test used was not adequately explained, and the more reliable furnace test was not applied. The markings on the gold were insufficient to prove foreign origin, as mere markings are considered hearsay evidence.

4. Voluntariness and Truthfulness of the Accused's Statement:
The accused's statement (Ext. P-3) was not considered a confession, as it did not contain an admission of guilt but only an explanation of how the gold came into his possession. The statement was retracted, and there was no corroboration to establish its voluntariness and truthfulness. The statement indicated that it was given under the promise of being spared a certain amount of money, raising doubts about its voluntariness.

5. Proof of Possession and Conscious Possession of the Accused:
The prosecution did not prove the accused's exclusive possession of the premises where the gold was recovered. The accused was a tenant, but the owner was not examined to confirm the tenancy and possession of the buildings. The refinery, from where the gold was recovered, was accessible to many people, and no independent witnesses from the locality were examined to establish possession. The court emphasized that possession must be conscious, meaning the accused must be aware of the nature and consequences of possessing the goods.

6. Compliance with Procedural Requirements:
The search was not conducted according to the procedural requirements of the Customs Act and the Criminal Procedure Code. The authorization for the search was flawed, and the search itself was conducted by an unauthorized person. The presence of respectable inhabitants during the search was not ensured, and the search list was not properly attested.

Conclusion:
The court confirmed the order of acquittal, finding that the prosecution failed to prove its case beyond a reasonable doubt. The search and seizure were illegal, the burden of proof under Section 123 was not met, the seized gold was not proven to be smuggled, the accused's statement was not voluntary, and possession was not established. The appeal was dismissed, upholding the acquittal.