1974 (12) TMI 40 - SC - Customs

Whether there was no evidence whatsoever to hold that the gold seized from the person to the appellant was liable to confiscation as contemplated by Section 11 of the Act? Whether the High Court had wrongly used Section 123 of the Act so as to wrongly place the burden of proof on the appellant when this provision did not apply? Whether Section 342 of the Criminal Procedure Code had not been complied with inasmuch as only two very general questions were asked by the Trying Magistrate followed by two others on one point? Held that - No presumption under Section 123 of the Act could be used against the appellant. We do not think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accused s guilty knowledge. The appellant admitted in his statement under Section 108 of the Act that transporting of these pieces of gold was an offence. If the gold had been legally imported before 1948 it could not be an offence to carry it. The appellant had not proved who Pannalal the person who was alleged by him to have given him the gold to carry was. At least the burden of proving an innocent receipt of gold lay upon the appellant under Section 106 of the Evidence Act. The totality of facts proved was enough in our opinion to raise a presumption under Section 114 Evidence Act that the gold had been illegally imported into the country so as to be covered by Section 111(d) of the Act. The appellant had not offered any other reasonable explanation of the manner in which it was being carried It is true that the general form of questions put does not strictly comply with the provisions of Section 342 Criminal Procedure Code. But we are unable to hold that the appellant suffered any injustice for this reason. Indeed he had not even raised such a question in the trial Court or before the High Court. If he had done so the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant. As the appellant and the fact that there is no previous conviction proved him we consider it to be undesirable to send the appellant back to jail for a few days. We therefore reduce the sentence to the period already undergone. Subject to this modification this appeal is dismissed

Summary

Issues:
1. Conviction under Section 135(b) of the Customs Act of 1962
2. Application of Section 123 of the Act regarding the burden of proof
3. Compliance with Section 342 of the Criminal Procedure Code
4. Sentencing and reduction of sentence

Analysis:

Conviction under Section 135(b) of the Customs Act of 1962:
The appellant was arrested for carrying gold bars on his person at a railway station. The appellant admitted to knowing that transporting the gold was a criminal offense. The court found the appellant's conduct suspicious and his explanation regarding receiving the gold bars was deemed incredible. The court inferred that the gold was likely smuggled due to the circumstances, and the appellant failed to provide a reasonable explanation. The court held that the evidence supported the conviction under Section 135(b) of the Act based on the appellant's conduct and admission.

Application of Section 123 of the Act regarding the burden of proof:
The appellant argued that the burden of proof was wrongly placed on him under Section 123 of the Act. The appellant relied on a previous case where the burden shifted only upon proper seizure by the customs officer. However, the court found that no presumption under Section 123 was used in the appellant's case. The conviction was based on circumstantial evidence and not solely on the statutory presumption. The court concluded that the burden of proof was correctly placed based on the evidence presented.

Compliance with Section 342 of the Criminal Procedure Code:
The appellant contended that Section 342 of the Criminal Procedure Code was not complied with during the trial. The appellant claimed that specific questions regarding the seizure of gold were not asked. The court acknowledged the general nature of the questions posed to the appellant but found that the appellant was fully aware of the allegations against him. The court deemed the objection technical and concluded that the appellant was not prejudiced by the questioning format. The court held that the alleged defect did not invalidate the conviction.

Sentencing and reduction of sentence:
The appellant requested a reduction in the sentence due to already serving a significant portion of it and having no prior convictions. The court considered the appellant's age and lack of previous convictions and decided to reduce the sentence to the period already served. The court dismissed the appeal with the modified sentence and allowed the appellant to remain on bail without surrendering.

In conclusion, the Supreme Court upheld the appellant's conviction under Section 135(b) of the Customs Act of 1962, clarified the application of Section 123 regarding burden of proof, found compliance with Section 342 of the Criminal Procedure Code, and reduced the appellant's sentence due to mitigating factors.