1967 (3) TMI 48 - HC - Customs

Summary

Issues Involved:
1. Conscious possession of gold by respondents 1 to 5.
2. Knowledge or reason to believe that the gold was smuggled.
3. Mens rea as an essential ingredient under Section 126 of the Sea Customs Act.
4. Involvement of respondent 6 in aiding or abetting the smuggling of gold.
5. Applicability of Section 123 of the Customs Act regarding the burden of proof.
6. Legality and correctness of the acquittal by the Magistrate.

Detailed Analysis:

1. Conscious Possession of Gold by Respondents 1 to 5:
The learned Magistrate held that the prosecution had not proved that respondents 1 to 5 were in conscious possession of the gold. The mere fact that they traveled in the car from Bombay did not make them liable. No inference could be drawn that they had knowledge of the existence of gold in the cavities of the car. The statements of accused 1 to 5 indicated that they had no knowledge whatsoever about the presence of the gold in the car and only became aware of it when the car was searched.

2. Knowledge or Reason to Believe That the Gold Was Smuggled:
Shri Keshava Iyengar, the Central Government Pleader, argued that the respondents had knowledge that Kabir was transporting smuggled gold. He pointed out various circumstances such as the respondents traveling with Kabir, the number of jackets matching the number of occupants, and the respondents referring to Kabir by an alias. However, the court found that from the totality of the circumstances, no inference could be drawn that the respondents had knowledge or reason to believe that Kabir was transporting smuggled gold.

3. Mens Rea as an Essential Ingredient Under Section 126 of the Sea Customs Act:
The Magistrate observed that mens rea was an essential ingredient under Section 126 of the Sea Customs Act. The prosecution had to prove that the accused had the necessary mens rea to constitute the offense. The court cited various Supreme Court judgments to support this view, emphasizing that mere possession or knowledge was not sufficient; the prosecution had to prove intent to evade prohibition or restriction.

4. Involvement of Respondent 6 in Aiding or Abetting the Smuggling of Gold:
There was no evidence to show that respondent 6 either aided or abetted respondents 2 to 5 and Kabir in carrying the gold. The fact that the car was registered in the name of respondent 6 was not sufficient to hold him liable. His statement disclosed that the car really belonged to Kabir, and he had only got it registered in respondent 6's name.

5. Applicability of Section 123 of the Customs Act Regarding the Burden of Proof:
Shri Keshava Iyengar argued that under Section 123 of the Customs Act, the burden of proving that the goods were not smuggled lay on the person from whose possession the goods were seized. However, the court held that the presumption under Section 123 would arise only when the smuggled goods were seized from the possession of the respondents. Since it was not possible to say that any of the respondents were in possession of the gold secreted in the car, the prosecution could not rely on this section.

6. Legality and Correctness of the Acquittal by the Magistrate:
The court noted that this was an appeal against the acquittal. The mere fact that another view could be taken on the evidence was no ground for setting aside the acquittal. The court found no compelling reasons to say that the view taken by the learned Magistrate was either erroneous or unreasonable. Therefore, the order of acquittal of the respondents was upheld.

Conclusion:
The appeal was dismissed, and the acquittal of the respondents by the learned Magistrate was upheld. The court found no merit in the arguments presented by the appellant and concluded that the prosecution had failed to prove the charges against the respondents.