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TMI Blog1997 (6) TMI 187X X X X Extracts X X X X X X X X Extracts X X X X ..... nd he did not have any document to prove the licit importation of the gold. Therefore, the gold was seized under the Customs Act, on the reasonable belief that the gold bars were liable to confiscation. On 23-10-1994 he gave a statement before the Customs Officers, wherein he reiterated that gold was purchased from Shri P. Thomas and gave one telephone number at Kottayam belonging to Shri Thomas. Efforts made to locate Shri P. Thomas were not successful. The telephone number given by Shri Rajendra Prabhu was found to be telephone number of State Bank of Travancore, Mannanam Branch. Subsequently, on 28-10-1994 Shri Balan, Malayil House, Nanmanda, P.O. Kozhikode District, wrote a letter to the Central Excise Supdt., SCP Unit, Kodungallur and claimed that he brought 42 gold biscuits from Dubai on 19-10-1994 and cleared the same on payment of Customs duty through Trivandrum Airport. He also claimed that he handed over 30 gold biscuits to Shri Rajenara Prabhu for selling them at Coimbatore. He enclosed copy of the receipt indicating the payment of duty on 42 gold biscuits. On 31-10-1994 Shri Rajendra Prabhu wrote a letter corroborating the claim of Shri Balan. He gave a statement on 14- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement is not voluntary and true as the same was recorded under threat and coercion. 4. Shri V. Thyagaraj, the learned SDR appearing for the department contended that in the beginning the appellant gave a statement wherein he had stated that the gold belonged to one P. Thomas. On enquiry it was found that the gold did not actually belong to the above said person and the telephone number given was also not correct. He pointed out that P. Thomas mentioned by the appellant was not an existing person and the telephone number given was also not correct. He further contended that the appellant was produced before the Additional Chief Judicial Magistrate. The appellant did not make any such statement of ill treatment. He further pointed out that the claim of Balan was made only on 28-10-1994 and it is clear that it is an afterthought. He further pointed out that the very fact that the appellant failed to mention the name of Balan initially goes to show that Balan was introduced only as an after- thought. He reiterated the reasoning in the impugned order. 5. We have considered the submissions made by both the sides. It is seen that the gold initially was seized by the Police and it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts of the present case would show that there could be no difficulty in holding that having regard to the admission made by the appellant and his subsequent conduct, the onus would shift to the appellant to show that the gold found from him with foreign markings was imported without any permit to his knowledge. This will be the combined effect of the provisions of Sections 106 and 114 of the Evidence Act. The matter was considered at great length in the case of Behram Khurshed Pesikaka v. The State of Bombay, (1955) I SCR 613 where this Court holding that Section 106 could not be construed to place the onus on the accused to prove the prosecution case, observed as follows :- Section 106 of the Evidence Act cannot be construed to mean that the accused has by reason of the circumstance that the facts are especially within his own knowledge to prove that he has not committed the offence. (See Attygallo v. The King, AIR 1936 PC 169, also In Re : Kanalcasabai Pillai, AIR 1940 Mad. 1). It is for the prosecution to prove that he has committed the offence and that burden is not in any manner whatsoever displaced by Section 106 of the Evidence Act. These observations were made with res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so, the facts are that gold with foreign markings in the shape of biscuits without indicating any change was recovered from the possession of the appellant. Secondly, the appellant admitted that the gold was brought from outside the country. The appellant further admitted that he did not hold any permit for importing the gold and the plea taken by him was that some unknown person had delivered the gold to him. In view of these circumstances and the fact as to how the accused came into possession of the gold and whether it was imported or not being within the special knowledge of the accused, if he failed to disclose the identity of the person who gave him the gold, then it was open to the Court to presume under Sections 106 and 114 of the Evidence Act that the appellant knew that the gold in his possession was smuggled and imported without permit. 6. In the State of Punjab v. Gian Chand (Criminal Appeal No. 195 of 1962 disposed of on 2-4-1968) (SC) = 1983 (13) E.L.T. 1284, while examining the validity of conviction and sentence under Section 167(81) of the Sea Customs Act, 1878, this Court held that as the accused did not claim any ownership over the gold and was a bullion mercha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4) 3 SCR 833 = 1983 (13) E.L.T. 1546, a case under the Customs Act, while dwelling on the nature and purport of the onus which lay on the prosecution, this Court observed as follows :- It cannot be disputed that in proceeding for imposing penalties under Clause (8) of Section 167 to which Section 178A does not apply, the burden of proving that the goods are smuggled goods, is on the Department. This is a fundamental rule relating to proof in all criminal or quasi-criminal proceedings, where there is no statutory provision to the contrary. But in appreciating its scope and the nature of the onus cast by it, we must pay due regard to other kindred principles, no less fundamental, of universal application. One of them is that the prosecution or the Department is not required to prove its case with mathematical precision to a demonstrable degree ....... All that it requires is the establishment of such a degree of probability that a prudent man may, on its basis, believe in the existence of the fact in issue. Thus, legal proof is not necessarily perfect proof, often it is nothing more than a prudent man s estimate as to the probabilities of the case. Similarly, while dealing with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh, in our opinion, to raise a presumption under Section 114, Evidence Act that the gold had been illegally imported into the country so as to [be] covered by Section 111(d) of the Act. The appellant had not offered any other reasonable explanation of the manner in which it was being carried." The facts in this case appear to be very similar to the facts in the present case. Furthermore, the case of Balumal Jamnadas Batra v. State of Maharashtra, 1983 (13) E.L.T. 1558 = (1976) 1 SCR 539 was also a case under the Customs Act and there also the presumption under Section 123 was not applicable. It was held therein that having regard to the conduct of the accused and nature of the articles mens rea was established. In this connection, this Court observed as follows :- The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country. The inscriptions on them and writing on the boxes were parts of the State in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise. The appellant s conduct, including his un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f mahazar. Sri Thomas has not given me any documents while giving me the above mentioned 30 Nos. of gold biscuits of foreign origin. I do not know whether any customs duty has been paid on this 30 gold biscuits. I do not know that gold biscuits of foreign origin are smuggled into India without paying any customs duty. My answer to your question that whether the above mentioned 30 gold biscuits of foreign origin were smuggled to India without paying any customs duty is that I do not know anything about it. I have not enquired whether customs duty has been paid on the above mentioned 30 gold biscuits or not. I am the only owner of the above mentioned 30 gold biscuits. No body else has got any right in these 30 Nos. of gold biscuits of foreign origin seized from me by the C.I. of Police, Chalakudy and handed over to you. I am an Income tax assessee. 10. Therefore, it is seen that this initial statement given by the appellant has revealed that one Thomas gave him the gold biscuits and there are no duty paying documents. This statement is binding on the appellant. This admission has got evidentiary value. In the decision reported in 1997 (90) E.L.T. 241, their Lordships have held as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the economy of the country. Detection and confiscation of the smuggled goods are aimed to check the escapement and avoidance of customs duty and to prevent perpetration thereof. In an appropriate case when the authority thought it expedient to have the contraveners prosecuted under Section 135 etc., separate procedure of filing a complaint has been provided under the Act. By necessary implication, resort to the investigation under Chapter XII of the Code stands excluded unless during the course of the same transaction, the offences punishable under the IPC, like Section 120B etc., are involved. Generally, the evidence in support of the violation of the provisions of the Act consists in the statement given or recorded under Section 108, the recovery panchnama (mediator s report) and the oral evidence of the witnesses in proof of recovery and in connection therewith. This Court, therefore, in evaluating the evidence for proof of the offences committed under the Act has consistently been adopting the consideration in the light of the object which the Act seeks to achieve." 11. Therefore, even if confession is retracted the same is admissible in evidence. In this connection at pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uired to be alleged and proved. In the decision reported in 1997 (18) RLT 402, the Calcutta High court has held as under : 25. It was not the Respondent No. 1 s case at any stage that he had been deprived of his personal liberty when he recorded the confessional statement. It is something which he should have alleged and established. There is in fact no evidence that the Respondent No. 1 was under any restraint placed on him by the Customs Authorities. The Respondent No. 1 could not be said to have been under arrest. The Full Bench decision of the Madras High Court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu : 1984 CRL. J. 134 is very instructive in the matter. The Full Bench was called upon to consider whether a confessional statement made before the Customs Authorities could be relied upon for the purpose of passing an order under the Act. It was said : In a proceeding under the provisions of the Customs Act, when any person is required or summoned for an enquiry under Section 107 or Section 108, that person is not an accused person and the officer summoning that person is not a police officer Any confession made by a person summoned under Section 107 or Se ..... X X X X Extracts X X X X X X X X Extracts X X X X
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