2011 (4) TMI 328 - SC - Customs

Search and seizure - High Court, has, on a very clear assessment of the evidence, has come to the conclusion that there was no evidence to indicate that what had been seized from the accused was in fact gold and that the mere bald assertion of the prosecution that gold biscuits had been seized could not be accepted as adequate proof and it was therefore not possible to shift the burden of proof that the article smuggled was gold - High Court has accordingly opined that the onus to prove that the gold was not of foreign origin had not shifted to the accused - Appeal is dismissed

Summary

Issues:
1. Compliance with Section 101 of the Customs Act.
2. Proof of seized article being gold.
3. Burden of proof in smuggling cases.

Compliance with Section 101 of the Customs Act:
The case involved a preventive officer intercepting the accused at the airport and conducting a personal search, leading to the seizure of gold biscuits. The High Court observed that the accused was not given the choice to be searched before a Magistrate or a Gazetted Officer as required by Section 101 of the Customs Act. This non-compliance was a significant factor in the acquittal of the accused.

Proof of seized article being gold:
The main issue revolved around the lack of evidence to prove that the seized article was indeed gold. The High Court emphasized that the prosecution's assertion alone was insufficient to establish the seized items as gold. Witnesses, including the customs officer who seized the gold and a custom guard, provided conflicting statements regarding the testing and verification of the seized items. The absence of concrete evidence regarding the nature of the seized article raised doubts about its composition, leading to the conclusion that the burden of proof had not shifted to the accused.

Burden of proof in smuggling cases:
The judgment highlighted the importance of the prosecution proving beyond doubt that the smuggled item was what it claimed to be. In this case, the lack of conclusive evidence regarding the nature of the seized gold placed the burden of proof on the prosecution. The High Court's decision to acquit the accused was based on the failure to establish with certainty that the seized article was, in fact, gold of foreign origin. The judgment underscored the necessity of meeting the burden of proof in smuggling cases to secure a conviction.

In conclusion, the Supreme Court dismissed the appeal, upholding the High Court's decision to acquit the accused based on the lack of evidence proving the seized article was gold and the non-compliance with Section 101 of the Customs Act. The judgment emphasized the crucial role of evidence and burden of proof in determining the outcome of smuggling cases, highlighting the need for thorough verification and compliance with legal procedures.