2002 (6) TMI 55 - HC - Customs

Summary

Issues:
1. Conviction under Section 135(1)(i) of the Customs Act and Section 85(1)(a) of the Gold (Control) Act.
2. Evidence of gold seizure and its origin.
3. Burden of proof under Section 123 of the Customs Act.
4. Market value and purity of seized gold.
5. Conviction under Section 135(1)(ii) of the Customs Act.

Issue 1: Conviction under Section 135(1)(i) of the Customs Act and Section 85(1)(a) of the Gold (Control) Act.
The case involved the appellant filing a complaint against the first respondent for offences under Section 135(1)(i) of the Customs Act and Section 85(1)(a) of the Gold (Control) Act. The Magistrate initially convicted the first respondent, who then appealed. The Sessions Judge acquitted the first respondent under the Customs Act but confirmed the conviction under the Gold (Control) Act. The appeal was filed challenging the acquittal under the Customs Act.

Issue 2: Evidence of gold seizure and its origin.
The prosecution's case revolved around the seizure of gold from the first respondent's possession, allegedly of foreign origin. The evidence included the seizure of gold biscuits concealed inside a Radio Cassette Recorder. The first respondent initially admitted to the gold being of foreign origin but later retracted the statement. The burden of proof was on the accused to establish the gold was not of foreign origin, which he failed to do. The court found that the prosecution successfully proved the gold seized was indeed of foreign origin.

Issue 3: Burden of proof under Section 123 of the Customs Act.
The prosecution argued that the burden was on the accused to prove the seized gold was not of foreign origin, as per Section 123(2) of the Customs Act. The court referred to previous judgments emphasizing the subjective satisfaction of officials in determining the burden of proof. It held that the officer had sufficient grounds to believe the gold was smuggled, shifting the burden to the accused, who failed to discharge it.

Issue 4: Market value and purity of seized gold.
The Magistrate's conviction under Section 135(1)(i) of the Customs Act was deemed unsustainable due to lack of evidence establishing the market value and purity of the gold seized. The method used to ascertain purity was questioned, and the value was not independently established. Consequently, the first respondent could only be convicted under Section 135(1)(ii) of the Act.

Issue 5: Conviction under Section 135(1)(ii) of the Customs Act.
Ultimately, the court allowed the appeal in part, finding the first respondent guilty under Section 135(1)(ii) of the Customs Act. He was convicted and sentenced to pay a fine, with no need for further questioning as he had already been examined by the Magistrate.

In conclusion, the judgment addressed various legal aspects, including burden of proof, evidence evaluation, and correct application of statutory provisions, leading to the partial allowance of the appeal and modification of the conviction under the Customs Act.