1988 (7) TMI 69 - HC - Customs

Summary

Issues Involved:
1. Conscious possession of contraband gold.
2. Voluntariness and admissibility of the accused's statement (Ext. P4).
3. Legal presumptions under Section 138A of the Customs Act and Section 98B of the Gold (Control) Act.
4. Role and credibility of P.W. 3 in concealing the gold.
5. Trial court's interpretation and reasoning.

Detailed Analysis:

1. Conscious Possession of Contraband Gold:
The accused was acquitted by the trial court on the grounds that the prosecution did not establish that the gold biscuits were in his conscious possession. The High Court, however, disagreed, emphasizing that the proximity of the burial spot to the accused's house (only two feet from the northern wall of the prayer room) made it improbable that anyone other than the accused would have chosen such a visible and risky spot to hide valuable gold. The court concluded that an outsider would not have buried the gold there without the accused's consent or active participation.

2. Voluntariness and Admissibility of the Accused's Statement (Ext. P4):
The trial court dismissed Ext. P4, the accused's statement, as involuntary, claiming it was obtained under coercion. The High Court, however, found no evidence that the accused was promised any advantage for making the statement. It noted that the accused, a businessman, did not complain about coercion until a week after being released on bail, which undermined his claim. The High Court held that Ext. P4 was a voluntary statement and contained detailed admissions about acquiring and concealing the gold, thus supporting the prosecution's case.

3. Legal Presumptions under Section 138A of the Customs Act and Section 98B of the Gold (Control) Act:
The High Court examined whether the presumption of culpable mental state under these sections could be extended to infer conscious possession. It concluded that while these sections allow for a presumption of mental state, the prosecution must still establish conscious possession. The court cited precedents, emphasizing that mere recovery of contraband from the accused's property is insufficient without proving conscious possession.

4. Role and Credibility of P.W. 3 in Concealing the Gold:
The trial court suspected P.W. 3's involvement in burying the gold, given his past smuggling activities and close association with the accused. However, the High Court found it illogical to assume P.W. 3 would have buried the gold in such a visible spot without the accused's knowledge or consent. It also noted that if P.W. 3 had owned the gold, he would not have informed the Customs authorities about its location, thereby betraying his own secret possession.

5. Trial Court's Interpretation and Reasoning:
The High Court criticized the trial court for not adequately considering the circumstances and probabilities that pointed to the accused's conscious possession. It found the trial court's acceptance of the accused's delayed retraction from Ext. P4 unsatisfactory and inconsistent with normal conduct. The High Court concluded that the trial court failed to properly evaluate the evidence and the broader context, leading to an erroneous acquittal.

Conclusion:
The High Court set aside the trial court's acquittal, finding the accused guilty under Section 135(1)(b)(i) of the Customs Act and Section 85(1)(ii)(a) of the Gold (Control) Act. The accused was sentenced to rigorous imprisonment for one year and six months for the respective counts, to run concurrently. The trial court was directed to take steps to ensure the accused serves the imprisonment term.