2011 (1) TMI 308 - HC - Customs

Seizure - Smuggled goods - Conviction u/s 135 - transported eight gold pieces weighing 378 gms and the petitioner was sentenced to 3 years imprisonment alongwith fine of Rs. 5000 - Learned courts below, however, found that before the custom authorities the petitioner had accepted that recovered articles were gold and that such statement of the petitioner was admissible in evidence - the burden of proving that they are not smuggled shall be; on the person from whose possession the goods were seized; if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also on such other person; in any other case, on the person, if any, who claims to be the owner of the goods so seized - the petitioner has not been able to discharge the onus that the articles recovered are not gold and is liable to conviction - the imprisonment of 3 years appears to be too harsh and the same is reduced to 2 years

Issues: Conviction under Section 135 of the Customs Act for transporting gold pieces, admissibility of expert testimony, burden of proof under Section 123 of the Customs Act, reduction of sentence.

Conviction under Section 135 of the Customs Act for transporting gold pieces:
The petitioner was convicted under Section 135 of the Customs Act for transporting eight gold pieces weighing 378 gms, resulting in a 3-year imprisonment and a fine of Rs. 5000. The defense argued that the prosecution failed to prove the recovered items were actually gold as the expertise of the individual identifying the substance was not established. However, the lower courts relied on the petitioner's admission before the custom authorities that the recovered articles were gold. This admission was considered admissible evidence, and the courts invoked the presumption under Section 123 of the Customs Act, placing the burden of proof on the petitioner to demonstrate that the seized goods were not smuggled. As the petitioner could not discharge this burden, the conviction was upheld.

Admissibility of expert testimony:
The defense contended that the person identifying the substance as gold was not proven to be an expert, casting doubt on the accuracy of the identification. However, the court found the petitioner's admission before the custom authorities regarding the nature of the recovered items as gold to be crucial evidence. This admission was deemed admissible, and in the absence of contrary evidence, the courts below relied on this admission and the presumption under Section 123 of the Customs Act to support the conviction.

Burden of proof under Section 123 of the Customs Act:
Section 123 of the Customs Act places the burden of proving that seized goods are not smuggled on the person from whose possession the goods were seized. In this case, as the petitioner failed to demonstrate that the recovered articles were not gold, the burden of proof was not discharged, leading to the affirmation of the conviction. The courts found that the petitioner's inability to refute the presumption under Section 123 was a significant factor in upholding the conviction.

Reduction of sentence:
Considering that the petitioner had already enjoyed almost 8 years of liberty since being released on bail, the court deemed the original 3-year imprisonment sentence too harsh. Consequently, the sentence was reduced to 2 years, and the petitioner was ordered to be arrested to serve the remaining term of 2 years. The decision to reduce the sentence was based on the petitioner's period of liberty and the court's discretion to modify the punishment accordingly.

Conclusion:
The petition was disposed of with the conviction under Section 135 of the Customs Act upheld, emphasizing the importance of the petitioner's admission, the burden of proof under Section 123, and the subsequent reduction of the imprisonment term due to the petitioner's prior period of liberty.

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