2002 (7) TMI 113 - HC - Customs

Summary

Issues Involved:
1. Legality of the seizure and search procedure.
2. Burden of proof regarding the nature of the seized goods.
3. Voluntariness and admissibility of the applicant's statement u/s 108 of the Customs Act.

Summary:

Issue 1: Legality of the Seizure and Search Procedure
The applicant was intercepted at Dabolim Airport, and a personal search revealed gold biscuits taped to his feet. The gold, of foreign origin, was seized under a panchnama dated 13th May 1987. The applicant was convicted u/s 135 of the Customs Act, 1962, read with Section 5 of the Imports and Exports (Control) Act, 1947. The trial court and the appellate court upheld the conviction, noting that the applicant was not apprised of his right to be searched in the presence of a Gazetted Officer or Magistrate as mandated by Section 102 of the Customs Act. This non-compliance rendered the search and seizure illegal, making the conviction unsustainable.

Issue 2: Burden of Proof Regarding the Nature of the Seized Goods
The prosecution failed to prove that the seized items were indeed gold biscuits. Despite requisitioning a goldsmith's services to test the purity of the gold, the goldsmith was neither examined nor cited as a witness. The evidence from P.W. 2 Shridaran, P.W. 3 Gawas, and P.W. 4 Royan was insufficient to establish that the seized items were gold. The court emphasized that u/s 123 of the Customs Act, the burden of proof shifts to the accused only after the prosecution establishes that the seized goods are specified in Section 123. The prosecution's failure to provide adequate proof meant that the burden did not shift to the accused.

Issue 3: Voluntariness and Admissibility of the Applicant's Statement u/s 108 of the Customs Act
The appellate court held that the applicant's statement u/s 108 of the Customs Act was voluntary. However, the High Court noted that a retracted confession cannot be the sole basis for conviction unless corroborated by independent evidence. The prosecution failed to establish the voluntariness of the statement and did not provide corroborative evidence. Consequently, the statement could not sustain the conviction.

Conclusion:
The High Court allowed the criminal revision application, quashing the conviction and sentence passed by the Chief Judicial Magistrate and confirmed by the IInd Additional Sessions Judge. The applicant was acquitted of the charge, and the bail bond was canceled. Any fine paid was ordered to be refunded to the applicant.