2009 (8) TMI 829 - HC - Customs

Revision petition - smuggling of gold biscuits without declaration and payment of duty - evidence on record revealed that petitioner was in possession of the contraband which admittedly was not declared in the declaration given by petitioner and for which no duty also was paid. Courts relied on the presumption under Section 138A of the Act. It was also observed that contention of petitioner that he was unaware of concealment of gold biscuits in the plywood box - statement of petitioner was that he is working abroad drawing a salary of Rs. 2,000/- per month and it was on his visa being cancelled that he was compelled to return to his native place. He stated that since he was not possessed of money to pay duty for his personal belongings he thought that he could send the personal belongings as unaccompanied air baggage, come to his native place, collect the amount for duty payable and clear the unaccompanied baggage. It is then that accused No. 2, Mohammed Ali offered him to pay duty provided his personal belongings are also sent in the very same unaccompanied baggage which petitioner agreed Held that - as per evidence he has studied only upto the 8th standard and on 29-12-1986 at the earliest point of time petitioner has disclosed the entire matters to the customs officials as seen from Ext.P6. On going through Ext.P6 which is in the handwriting of petitioner it is seen that even words (in Malayalam) are not properly written, petitioner was duped when his own personal belongings were sent by unaccompanied air baggage by those who promised to help him, finding of courts below that petitioner had conscious possession of the contraband cannot stand. It follows that conviction and sentence of petitioner cannot be sustained, Revision petition succeeds

Issues Involved:
1. Whether the presumption under Section 138A of the Customs Act has been rebutted by the petitioner.
2. Whether the petitioner had conscious possession of the contraband (67 gold biscuits).

Issue-wise Detailed Analysis:

1. Rebuttal of Presumption under Section 138A of the Customs Act:

The primary question raised in this revision petition is whether the presumption under Section 138A of the Customs Act has been successfully rebutted by the petitioner. The petitioner, along with two others, was charge-sheeted for offenses under Sections 132 and 135(1)(i) of the Act for allegedly smuggling 67 gold biscuits without declaration and payment of duty. The petitioner was convicted under Section 135(1)(i) of the Act and sentenced to three years of rigorous imprisonment and a fine of Rs. 40,000/-, while he was acquitted under Section 132 of the Act. The conviction and sentence were confirmed by the learned first Additional Sessions Judge, Ernakulam.

The petitioner argued that he had successfully rebutted the presumption under Section 138A by adducing evidence and bringing out circumstances from the prosecution witnesses' evidence. The petitioner relied on the decision in Asst. Collector v. Pavunni, which was confirmed by the Supreme Court in Pavunny v. Assistant Collector, to support his contention that the statement recorded by the Customs Authorities under Section 108 of the Act is substantive evidence and should be accepted unless proven incorrect.

2. Conscious Possession of the Contraband:

The facts of the case reveal that the petitioner, employed as a driver in Abu Dabi, returned to India on 23-12-1986 and went to the air cargo complex at Thiruvananthapuram Airport on 29-12-1986 to collect his unaccompanied air baggage. Upon examination, 67 gold biscuits were found concealed in a plywood box within the baggage. The petitioner was arrested, and his statement was recorded under Section 108 of the Act. The petitioner claimed that he was unaware of the gold biscuits and was cheated by Mohammed Ali (accused No. 2) and Aboobacker (accused No. 3), who had asked him to carry their belongings along with his personal items.

The court examined whether the petitioner had conscious possession of the contraband. The evidence showed that the petitioner was in possession of the baggage containing the gold biscuits, which were not declared, and no duty was paid. The courts below relied on the presumption under Section 138A of the Act and observed that the petitioner's contention of unawareness could not stand, as he carried telephone numbers of political leaders, indicating he expected trouble at the cargo complex.

However, the court noted that the presumption under Section 138A of the Act does not imply that possession is knowingly or intentionally. The Supreme Court, in Madan Lal v. State of H.P., held that once possession is proved, the accused must show that he had no conscious possession of the contraband. The petitioner can rebut this onus by relying on circumstances arising from the prosecution's case.

The court considered the petitioner's statement (Ext.P6) recorded under Section 108 of the Act as substantive evidence. The petitioner stated that he was compelled to return to India due to the cancellation of his visa and agreed to carry Mohammed Ali's belongings as he could not afford the duty for his items. The evidence showed that Mohammed Ali had the airway bill (Ext.P5) until it was handed over to the petitioner for clearance. The petitioner disclosed the involvement of Mohammed Ali and Aboobacker, and the customs officials questioned them.

The court found that the petitioner's salary was only Rs. 2,000/- per month, making it unlikely that he could afford the gold biscuits valued at Rs. 18,65,280/-. The court also noted that the petitioner had studied only up to the 8th standard, and his statement (Ext.P6) was detailed and written in his handwriting, indicating he was speaking the truth. The court concluded that the petitioner was duped and did not have conscious possession of the contraband.

Conclusion:

The court held that the petitioner successfully rebutted the presumption under Section 138A of the Customs Act and proved that he did not have conscious possession of the contraband. Consequently, the conviction and sentence of the petitioner under Section 135(1)(i) of the Act were set aside, and he was acquitted of the charge.

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