1967 (2) TMI 34 - HC - Customs

Issues Involved:
1. Admissibility of Exhibit P-6 under Section 24 of the Evidence Act.
2. Conscious possession of smuggled gold by the respondent.
3. Burden of proof under Section 123 of the Customs Act, 1962.
4. Applicability of Rule 126-P(2) of the Defence of India (Amendment) Rules, 1963.
5. Legality of the acquittal by the learned Magistrate.

Detailed Analysis:

1. Admissibility of Exhibit P-6 under Section 24 of the Evidence Act:
The Court examined whether Exhibit P-6, the statement made by the respondent to P.W. 4 Rajadurai, Superintendent of Central Excise, was admissible in evidence and could be used against the respondent. The Court held that Exhibit P-6 is not hit by Section 25 of the Indian Evidence Act, as statements recorded by Customs and Central Excise Officers are not affected by this section. The Court further analyzed whether Exhibit P-6 was hit by Section 24 of the Evidence Act, which deals with the voluntariness of confessions. The Court referred to the principles laid down in Pyare Lal Bhargava v. The State of Rajasthan, emphasizing that the existence of a threat, inducement, or promise must be sufficient to cause reasonable belief in the accused's mind. The Court concluded that there was no evidence or circumstances indicating that Exhibit P-6 was obtained through inducement, threat, or promise, and thus, it was admissible.

2. Conscious possession of smuggled gold by the respondent:
The Court considered whether the respondent was in conscious possession of the 43 pieces of gold seized from his suitcase. The learned Magistrate had acquitted the respondent on the grounds that he had no knowledge of carrying the gold pieces. However, the Court found this reasoning flawed, noting that the respondent admitted to possessing the gold pieces and that they bore foreign markings. The Court emphasized that the respondent's inconsistent allegations and the evidence of the locked suitcase with the key in his possession indicated conscious possession.

3. Burden of proof under Section 123 of the Customs Act, 1962:
The Court highlighted that under Section 123 of the Customs Act, 1962, the burden of proving that the seized goods are not smuggled lies on the person from whose possession they were seized. The respondent failed to provide any explanation for possessing the foreign-marked gold pieces. The Court noted that the respondent's written statement, alleging that accused-2 had placed the gold in his suitcase without his knowledge, was not credible given the evidence of the gold being hidden in a pillow-cover and a Turkey-towel.

4. Applicability of Rule 126-P(2) of the Defence of India (Amendment) Rules, 1963:
The Court disagreed with the learned Magistrate's view that Rule 126-P(2) was not applicable to the facts of the case. The Court clarified that the definition of "gold" in Rule 126-A of the Defence of India Rules includes smuggled gold. The evidence showed that the respondent possessed 43 pieces of foreign gold without the requisite declaration or permit under the Gold Control Rules, thus violating Rule 126-P(2)(ii).

5. Legality of the acquittal by the learned Magistrate:
The Court found the learned Magistrate's decision to acquit the respondent based on the lack of conscious possession and knowledge of the gold pieces to be erroneous. The Court emphasized that the prosecution had established beyond reasonable doubt that the respondent knowingly transported the gold pieces from Bombay to Bangalore. The Court also noted that even excluding Exhibit P-6, the overwhelming evidence against the respondent justified his conviction.

Conclusion:
The Court allowed the appeal, set aside the order of acquittal, and convicted the respondent of offenses under Section 135 of the Customs Act and Rule 126-P(2) of the Defence of India (Amendment) Rules, 1963. The respondent was sentenced to undergo rigorous imprisonment for six months for each offense, with the sentences to run concurrently.

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