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TMI Blog2011 (7) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... . The said action was taken pursuant to the information received by D.S.P, Jamnagar that two persons, namely, Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar had smuggled gold ornaments from Dubai (Malgoi) and brought to Salaya in a vessel in the month of December, 1993. This was handed over to Customs Department on 11.4.1994 for initiating the actions under the provisions of the Customs Act. 3. As the said bars were detained from the persons not having import documents, a reasonable belief was formed that the same were smuggled gold ornaments liable for confiscation and accordingly the same were seized under the provisions of the Customs Act. The statements of suspects Shri Talab Siddik Sanghar and Abbas Jaku Bhaya had been recorded on 12.4.1994 under Section 108 of the Customs Act before the Superintendence of Customs (PI), Jamnagar, where it had been stated that they had stolen the gold ornaments and smuggled the same into India. The statements of following persons were recorded under Section 108 of the Act in connection with these gold ornaments:- 1. Shri Ashwin Mohanlal Soni 2. Shri Chandrakant Harilal Varia 3. Shri Hasmukhlal Hansra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utset, by learned advocate for the appellant that initially there was a seizure by the respondent authorities under Section 102 of the Code of Criminal Procedure and subsequently the gold had been handed over by the Police Inspector to the Customs Department on 11.4.1994 for initiating actions under the Customs Act. He, therefore, had contended that this was not a seizure under Section 110 of the Customs Act as under Section 110, proper officer has to have " reason to believe" if any goods are liable to confiscation under the Act, which according to him is absent here. It is further argued that only in the event of seizure under Section 110 that the provision of Section 123 would be attracted where the onus of burden shifts on the person from whom the seizure is made to establish that the goods seized are not smuggled goods otherwise, burden continues on prosecuting agency. He relied heavily upon the judgment of the Apex Court in the case of Gian Chand and others vs. State of Punjab reported in AIR 1962 SC 496, where the Apex Court has discussed at length the provision of Customs Act and particularly Section 178(A) by holding that the expression " seized" in the context of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... culls out from the record is that on the basis of the information received by the D.S.P,Jamnagar the action was initiated under Section 102 of the Code of Criminal Procedure by the Inspector of Police confiscating five boxes containing 2514.750 grams of 16 to 18 carats pure gold valued at Rs.7,97,731/-. 7.2 As two persons Shri Abbas Jaku Bhaya and Shri Talab Siddik Sanghar were said to be the persons behind these smuggled goods and they were also found to have disposed of the same to different persons, they were handed over to the Customs Department. The goods were also handed over to the Customs Department by the Police Inspector on 11.4.1994 for taking action under the provision of Customs Act. On considering merit in the documents, the proper officer had confirmed a reasonable belief of the gold bars being the smuggled gold ornaments and, therefore, they were seized under the Customs Act. What is further emerging from the record is that the statements of both the aforementioned persons (smugglers) were recorded under Section 108 and on the basis of the details provided by them, show cause notices were also issued to others. The persons, who have been named hereinbefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statements were recorded under Section 108 soon after the gold bars had been handed over to the Customs department for taking actions. What clearly and unequivocally gets established from the record is that there is an overwhelming evidence before the adjudicating authorities to establish that the commodities seized were smuggled and the said gold had been sold to different persons, who had purchased them with full knowledge and not these statements alone. 8. Before the Customs authorities, the question was not that of prosecution, it was to decide the aspect of confiscation. Again, exclusive reliance was placed on the statement of the accused in the case of Noor Aga(supra), which is of no help to the appellant for there being no exclusive or excessive reliance on the statements recorded under Section 108 of the Customs Act for determining the question of confiscation. In the very same judgment, the mention is also made of the use of retracted confessional statement of the person recorded under Section 108 of the Act provided the same is made voluntarily and the burden of proof with regard to such confession being voluntary would be, of course, on the prosecution. The Court has a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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