1978 (10) TMI 51 - HC - Customs

Summary

Issues Involved:
1. Reasonable belief for seizure under Section 123 of the Customs Act.
2. Burden of proof regarding smuggled goods.
3. Applicability of Section 135(b) of the Customs Act.
4. Confiscation of gold biscuits.
5. Sentencing and probation.

Detailed Analysis:

1. Reasonable Belief for Seizure under Section 123 of the Customs Act:
The primary issue was whether the seizure of gold biscuits from the accused was made under a "reasonable belief" that the goods were smuggled. The prosecution argued that the information received by the customs officer about the accused bringing smuggled gold from Bombay constituted a reasonable belief. The court noted that the officer had prior information specifically about smuggled gold, and the seizure memo clearly mentioned the reasons for recovery. Thus, it was held that the seizure was made under a reasonable belief that the gold was smuggled.

2. Burden of Proof Regarding Smuggled Goods:
Under Section 123 of the Customs Act, once goods are seized under the reasonable belief that they are smuggled, the burden of proof shifts to the accused to prove that the goods are not smuggled. The court found that the prosecution had established the reasonable belief required for the seizure, thereby shifting the burden to the accused. The accused failed to discharge this burden, as he denied the recovery of gold biscuits from his possession and provided no credible evidence to prove that the goods were not smuggled.

3. Applicability of Section 135(b) of the Customs Act:
Section 135(b) pertains to dealing with goods that one knows or has reason to believe are liable to confiscation under Section 111. The court examined whether the accused had knowledge or reason to believe that the gold biscuits were smuggled. Given the foreign markings on the gold biscuits and the circumstances of their recovery, the court concluded that the accused, being a saraf (goldsmith), was aware that the gold was smuggled. Therefore, the court held that the accused was guilty under Section 135(b)(ii) of the Customs Act.

4. Confiscation of Gold Biscuits:
The trial court had ordered the confiscation of the gold biscuits to the State of Rajasthan. However, the appellate court noted that the gold biscuits had already been confiscated by the Customs authority and vested in the Central Government under Section 126 of the Act. Consequently, the order of confiscation to the State of Rajasthan was set aside, and it was directed that the gold biscuits be returned to the Central Government through the competent Customs officer.

5. Sentencing and Probation:
The court considered the appropriate sentence for the accused. Although the offence was serious, the court took into account the long duration since the offence (nearly 13 years) and the age of the accused (about 17 years at the time of the offence). The court also considered the reformative approach under the Probation of Offenders Act, 1958. Instead of sentencing the accused to imprisonment, the court directed that he be released on probation for two years, with a personal bond of Rs. 5,000 and one surety in the like amount, to the satisfaction of the Munsif and Judicial Magistrate, First Class, Bhilwara.

Conclusion:
The appeal was accepted, and the accused was convicted under Section 135(b)(ii) of the Customs Act. He was released on probation instead of being sentenced to imprisonment. The order of confiscation of the gold biscuits to the State of Rajasthan was set aside, and the gold biscuits were directed to be returned to the Central Government through the competent Customs officer.