1991 (9) TMI 79 - HC - Customs

Summary

Issues:
1. Conviction under Section 135 of the Customs Act, 1962, and Section 85 of the Gold (Control) Act, 1968.
2. Appeal against acquittal by the Additional Sessions Judge.
3. Burden of proof on the prosecution to establish possession of smuggled goods.
4. Validity of confessional statements made before Customs Authorities.
5. Differentiation of liability between co-accused based on possession of incriminating evidence.

Analysis:
The judgment involves the case of two accused individuals, Rohit Kumar and Kapil Mehra, who were initially convicted under Section 135 of the Customs Act and Section 85 of the Gold (Control) Act. The prosecution's case was based on a raid at a railway station where Rohit Kumar was found in possession of smuggled gold biscuits. The lower appellate Court acquitted the accused based on the exclusion of confessional statements and lack of evidence proving the seized items were gold of foreign origin. The defense argued that the burden of proof lay with the prosecution to establish the nature of the seized goods, citing relevant case law.

The Court examined the burden of proof under Section 123 of the Customs Act, which shifts to the accused if goods are seized under a reasonable belief of being smuggled. Referring to Supreme Court precedents, the Court emphasized that the officer's belief should be accepted unless clearly unjustified. The presence of incriminating circumstances, such as foreign markings on gold biscuits not available in India, supported the prosecution's case. The confessional statements were deemed admissible, and the fairness of the operation was upheld.

The judgment differentiated between the two accused, concluding that while Rohit Kumar was found guilty based on the evidence and confessional statements, Kapil Mehra was acquitted as no incriminating evidence was recovered from him. The Court upheld the conviction of Rohit Kumar under both Acts, maintaining the original sentence. The appeal against Kapil Mehra was dismissed, and Rohit Kumar was ordered to serve the sentence. The judgment highlighted the importance of establishing possession and guilt individually for each accused based on the evidence presented during the trial.