1980 (2) TMI 96 - SC - Customs

Whether he burden of proving an innocent receipt of gold lay upon the appellant under Section 106, Evidence Act? Held that - It is true that in the instant case the seizure was not made under Section 111 of the Customs Act and the prosecution could not press into service the presumption arising from Section 123 of the Customs Act, that does not clinch the issue. It is proved that the appellant was in possession of gold with foreign markings which was found to be in the shape of biscuits or bars kept in a secret chamber of the safe, and that the accused admitted that the gold was brought form outside the country and was given to him by somebody whose identity he was not prepared to disclose. Thus, the appellant knew as to who was the person who had given him the gold and if he also knew, as he says, that the gold was smuggled, he must have known whether the person who delivered the gold to him brought it under a permit or without any permit because at the time of the occurrence the import of gold was banned excepting under special circumstances. Having regard to the totality of the situation, there is no reason why the prosecution would not be entitled to call into aid the combined effect of the presumptions under Sections 106 and 114 of the Evidence Act. We are, therefore, satisfied that the prosecution has clearly proved the charge under Section 135(b)(ii) of the Customs Act. Appeal dismissed.

Issues Involved:
1. Legality of the conviction under Section 135(b)(ii) of the Customs Act, 1962.
2. Applicability of Section 123 of the Customs Act.
3. Interpretation and application of Sections 106 and 114 of the Evidence Act.
4. Consideration of the appellant's knowledge and mens rea.
5. Appropriateness of the sentence imposed.

Detailed Analysis:

1. Legality of the conviction under Section 135(b)(ii) of the Customs Act, 1962:

The appellant was convicted under Section 135(b)(ii) of the Customs Act, 1962, which states: "If any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111." The essential ingredients of this clause require the prosecution to prove that the accused had possession of smuggled goods with knowledge or reason to believe that they were liable to confiscation under Section 111. The prosecution had to affirmatively prove that the appellant was in possession of smuggled gold knowing it was imported illegally. The court found that the prosecution successfully established these elements, leading to the conviction.

2. Applicability of Section 123 of the Customs Act:

It was admitted by the prosecution that the presumption under Section 123 of the Customs Act was not available since the seizure was not made in accordance with the provisions of the Customs Act. This section allows for a presumption that goods are smuggled if they are seized under the Act. However, the court noted that the lack of this presumption did not preclude the prosecution from proving its case through other means.

3. Interpretation and application of Sections 106 and 114 of the Evidence Act:

Sections 106 and 114 of the Evidence Act were pivotal in shifting the burden of proof. Section 106 states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. Section 114 allows the court to presume the existence of certain facts. The court held that the combined effect of these sections could be applied to infer that the appellant knew the gold was smuggled, especially since the appellant failed to disclose the identity of the person who gave him the gold. The court referenced several precedents, including Behram Khurshed Pesikaka v. The State of Bombay and Issardas Daulat Ram v. The Union of India, to support this interpretation.

4. Consideration of the appellant's knowledge and mens rea:

The court examined the appellant's conduct and statements. The appellant admitted that the gold was brought from outside the country and that he did not have a permit for it. The court found that the appellant's failure to identify the person who gave him the gold and the concealment of the gold in a secret chamber indicated guilty knowledge. The court drew a parallel with previous cases, such as Lalchand Dhanpat Singh Jain v. The State of Maharashtra, where the accused's conduct and the nature of the articles were sufficient to establish mens rea.

5. Appropriateness of the sentence imposed:

The appellant was sentenced to rigorous imprisonment for nine months, which was upheld by the High Court. The appellant's counsel argued for leniency due to the prolonged duration of the case. However, the court found no room for reduction of the sentence, considering the severity of the offense and the established guilt.

Conclusion:

The Supreme Court dismissed the appeal, affirming the conviction and sentence under Section 135(b)(ii) of the Customs Act. The court held that the prosecution had sufficiently proved the appellant's knowledge and possession of smuggled gold through the application of Sections 106 and 114 of the Evidence Act, despite the inapplicability of Section 123 of the Customs Act. The sentence of rigorous imprisonment for nine months was deemed appropriate given the circumstances.

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