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TMI Blog1985 (7) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... ence of the same in terms of Section 82B of the Gold (Control) Act, 1968 to the High Court of Andhra Pradesh. For purposes of brevity we condense the pleadings and submissions of the applicant and give the substance: (1) Whether the Tribunal was justified in throwing the onus on the applicant to prove that the entries were not genuine in view of the decision in Lalit Kumar v. Assistant Collector, Meerut, reported in 1983 E.L.T. 2208. (2) Whether the observations of the Tribunal that the Department could invoke Sections 106 and 114 of the Evidence Act to draw an adverse inference against the applicant is legally tenable in view of the decision of the Supreme Court in 1985 E.L.T. 1321, 1546 and 1983 ECR 1935D. (3) Whether on the facts o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered in the order of the Tribunal in extenso on consideration of the evidence on record. The ratio of the decision in Lalit Kumar v. Assistant Collector of Central Excise, Meerut , reported in 1983 E.L.T. 2208 (All) has absolutely no application to the facts of this case nor any relevance to the issue decided herein. That was a criminal revision decided by the learned single Judge of the Allahabad High Court in a prosecution arising under the provisions of the Gold (Control) Act, 1968. The question that arose for consideration in that case was as to whether the prosection could rely upon the entries in an account book without specific proof of the same. As a matter of fact only three extracts were made out of the entire seizure and prod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the parties. That was a case which arose out of a criminal prosecution under Section 135(a) (b) of the Customs Act, 1962 where the Supreme Court held that even in cases where Section 123(1) of the Customs Act is not attracted the prosecution can discharge its burden by establishing circumstances from which a prudent man acting prudently may infer that in all probability the goods in question were smuggled goods and the accused had the requisite guilty knowledge in respect thereof. The Supreme Court referred to the leading case Issardas Daulat Ram v. Union of India - 1962 Supp. (1) SCR 358 and held that in that case, in reaching the conclusion that the gold had been smuggled the Collector of Customs considered the credibility of the story ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nswer this issue also against the applicant. 4. The next question canvassed by the applicant that no penalty under Section 74 of the Act can be imposed without determining the value of the gold is benefit of substance. The account book s seized from the applicant s premises evidence transactions in gold and the applicant has informed the authorities immediately on seizure that the books under seizure belonged to his gold business. The transactions evidence by the entries in the account books would incontrovertibly justify the imposition of a penalty for more than Rs. 3 lakhs in terms of Section 74 of the Act. This is purely a question of factual appreciation and assessment of the magnitude of clandestine transactions indulged in by the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is position is no longer res integra and is concluded by a number of authoritative pronouncements of the Supreme Court. Reference may usefully be made to recent ruling of the Supreme Court though not cited by either of the parties, reported in AIR 1980 S.C. 593, where the Supreme Court has observed assuming arguendo, that the search was illegal, then also, it will not affect the validity of the seizure and further investigation by the Customs authorities or the validity of the trial which followed on the complaint of the Assistant Collector of Customs . The Supreme Court has also adverted to an earlier ruling of the Supreme Court in Radhakrishnan v. State of U.P. , reported in AIR 1963 S.C. 822, wherein his Lordship Justice Mudholkar, spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to show that the results outweigh the rule s heavy costs to rational enforcement of the Criminal Law. See, e.g. Killough v. United States, (1962) 315 F 2d 241): The burden rightly rests upon those who seek society to ignore trustworthy evidence of guilts at the expense of setting obviously guilty criminals free to ply their trade. Therefore, even in a criminal case where a search is illegal it is made clear that it would not vitiate or invalidate seizure consequent on such an illegal search. No doubt person has a right to resist an illegal search, but incriminating articles recovered consequent on an illegal search would not become inadmissible in law nor a resultant trial consequent on an illegal search would be incompetent. A fortiori ..... X X X X Extracts X X X X X X X X Extracts X X X X
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