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TMI Blog2006 (2) TMI 408X X X X Extracts X X X X X X X X Extracts X X X X ..... in the presence of two independent witnesses. On demand, Shri Amar Kishore Prosad of Ramgarhwa could not produce any licit paper/document in support of legal importation/possession of the foreign origin gold. Hence all the three pieces of contraband gold weighing 280.200 grms. valued at Rs. 1,42,902.00 (Rupees one lakh forty-two thousand nine hundred and two) were seized under Section 110 of the Customs Act, 1962. He has also disclosed in his statement that these gold pieces belonged to one Shri Amar Kishore Prosad, Sonarpatty, Raxaul, who had given the same to Shri Amar Kishore Prosad of Ramgarwa to deliver those pieces to one Shri Shivpujanjee, owner of M/s. Shivpujan Jewellers, Saraiya Ganj, Chata Bazar near Gandhi Murti, Muzaffarpur. Shri Amar Kishore Prosad of Ramgarwa was detained by the Customs Officers on 22-4-1996 and was produced before the Chief Judicial Magistrate on 24-4-1996. The name and address of the person on whose behalf, this carrier was taking the gold, were found to be correct. The residential premises of Shri Amar Kishore Prosad of Ramgarwah as well as Amar Kishore Prosad of Raxaul were also searched. But no incriminating documents were found from his premise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or prohibition to have the primary gold with any individual in the country during the period in question. The purities of the three gold pieces were found to be 984.2, 992.200 and 995.5. He, therefore, submits that in view of the purities of the gold bars in question, it cannot be said that these gold bars were of foreign origin. The gold bars of such purities are freely available in the country. He submits that though the carrier of the gold had disclosed the name of the owner in his statement at the very beginning, no enquiry has been made from him. The shop and his residential premises were searched by the Department. No statement from that person has also been taken by the Department. He, further, submits that the only evidence available is the statement of the carrier i.e. Shri Amar Kishore Prosad of Ramgarwa. However, the statement of the appellant, Shri Amar Kishore Prosad of Ramgarwa had been recorded by the Department after detention of more than 24 hours and it carries no evidentiary value. In support of his contention, he cited the following decisions: - (i) 1991 (55) E.L.T. 497 (Guj.) in the case of Union of India v. Abdulkadar Abdulgani Hasmani; (ii) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been laid down by the various courts that once a person is arrested, he should be produced before the Chief Judicial Magistrate within 24 hours of his arrest. I find it difficult to agree with the arguments advanced by the learned J.D.R. that the arrest of Shri Amar Kishore Prosad of Ramgarwa was made on 23-4-1996 and he was produced before the Chief Judicial Magistrate on 24-4-1996, which was within 24 hours of his arrest. Dr. Marianna is trying to make a fine distinction between arrest and detention. According to him, 24 hours start only after the arrest of Shri Amar Kishore Prosad of Ramgarwa. He could not produce any authority in support of his contention. This view of the JDR does not find support from Customs Act, IPC or CrPC. 6.1 The next question to be decided is whether the burden of proof is on the appellants herein or on the Department. I find that the purity of the gold bars in question were found to be 984.2, 992.200 and 995.5. There were no marks and numbers, which can specify that these gold bars were of foreign origin. There is tampering of the marks and numbers and that does not prove that the gold bars were of foreign origin. I also find that in the case of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers. The shop and residential premises of the Appellant were searched and nothing increminating has been found. Learned J.D.R. has submitted that even if it is found that the detention of Shri Amar Kishore Prosad of Ramgarwa was illegal, it will not make any difference in the confessional statements given by him. I find it difficult to agree with him, in light of various decisions quoted above. It has been held by the Hon ble High Court of Gujarat in the case of Union of India v. Abdulkadar Abdulgani Hasmani reported in 1991 (55) E.L.T. 497 (Guj.) (referred to above), that Section 123 of the Customs Act, 1962 shifts the burden on the accused only when goods seized :(1) under the Act; (2) by the proper officer duly empowered to seize goods under Section 110 of the Act; and (3) in the reasonable belief of such officer that they are smuggled goods. The said Court has further held that the confessional statements of the accused recorded after some delay and while they were in custody of Customs Officer, may not be voluntary. The said Court has also held that the stage of recording of statements under Section 108 arises only when an inquiry is started either for confiscation of goods or ..... X X X X Extracts X X X X X X X X Extracts X X X X
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