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TMI Blog2009 (8) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... same unaccompanied baggage which petitioner agreed – Held that:- as per evidence he has studied only upto the 8th standard and on 29-12-1986 at the earliest point of time petitioner has disclosed the entire matters to the customs officials as seen from Ext.P6. On going through Ext.P6 which is in the handwriting of petitioner it is seen that even words (in Malayalam) are not properly written, petitioner was duped when his own personal belongings were sent by unaccompanied air baggage by those who promised to help him, finding of courts below that petitioner had conscious possession of the contraband cannot stand. It follows that conviction and sentence of petitioner cannot be sustained, Revision petition succeeds - 1212 of 2001(A), - - - Dated:- 13-8-2009 - Thomas P. Joseph, J. REPRESENTED BY : Shri B. Raman Pillai, for the Petitioner. Shri P.S. Sreedharan Pillai, SCGSC, for the Respondent. [Order]. Question raised for a decision in this revision petition at the instance of accused is whether presumption under Section 138 A of the Customs Act (for short, the Act ) has been rebutted by him. Petitioner along with two others were charge-sheeted for offences puni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner reached in the Airport. On petitioner producing Ext.P5, airway bill, baggage was taken for the purpose of being released to the petitioner. On examination of the baggage with a metal detector it was learnt that the bag contained gold and accordingly it was opened. Inside the bag in a plywood box in concealed cells 67 gold biscuits were found. Exhibit P1 is the International passenger baggage declaration given by petitioner when he came to the Airport on 29-12-1986 to clear the unaccompanied baggage. Exhibit P2 is the assay certificate issued by P.W5, gold dealer. Exhibit P3 is the mahazar for seizure of the contraband and other articles on 29-12-1986. Exhibit P5 is the airway bill produced by petitioner at the air cargo complex at Thiruvananthapuram Airport for release of the unaccompanied baggage. Exhibit P6 is the statement of petitioner recorded by Superintendent of Customs (P. W.2) on 29-12-1986. P.W.1, Superintendent of Air Customs stated about the incident and he effected the seizure as per EX.P3. P.W3 is the Porter who brought the unaccompanied air baggage for examination by the authorities as directed by them. He is also an attester in Ext.P3, mahazar. P.W4 is an Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Imam talked something to Dancer Thampi. From there, petitioner came back to the Imam and on 29-12-1986 they went to the Air cargo complex where Mohammed Ali was waiting for them. Mohammed Ali handed over Ext.P5, airway bill to the petitioner. At about 1.30 p.m., name of petitioner was announced for clearance of the unaccompanied baggage. Petitioner identified the baggage with reference to his name written on the baggage. He handed over Ext.P5 to the Officer concerned. Plywood box was opened and then only he learnt that it contained gold biscuits. He claimed that he is innocent and that he was cheated. 4. Petitioner examined the said Imam as D.W. 1. Exhibits D1 and D2 are statements of D.W. 1 recorded by the customs officials first on 31-12-1986 and then on 16-1-1987. Though in the first statement Imam, D.W. 1) was not prepared to admit whatever petitioner had claimed when further questioned on 16-1-1987 (Ext.D2) he stated that petitioner and accused Nos. 2 and 3 approached him and that he had taken petitioner to Dancer Thampi. It is also stated by D. W. 1 that Ext.P5, airway bill was with accused No. 2 (Mohammed Ali) till it was entrusted with petitioner for clearance of the un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on also is true. The onus that petitioner has to discharge is not as heavy as that of prosecution in proving its ease beyond reasonable doubt. Based on that principle I shall consider whether petitioner was able to show that he had no conscious possession of the contraband. 7. Statement of petitioner (Ext.P6) recorded under Sec. 108 of the Act is substantive evidence. If that statement could be used against petitioner, there is no reason why circumstances if any made out in his favour in it could not be looked into. Going by Ext.P6, statement petitioner was working abroad drawing a salary of Rs. 2,000/- per month and it was on his visa being cancelled that he was compelled to return to his native place. He stated that since he was not possessed of money to pay duty for his personal belongings he thought that he could send the personal belongings as unaccompanied air baggage, come to his native place at Irinjalakuda, collect the amount for duty payable and clear the unaccompanied baggage. It is then that accused No. 2, Mohammed Ali offered him to pay duty provided his personal belongings are also sent in the very same unaccompanied baggage which petitioner agreed. This fact is dis ..... X X X X Extracts X X X X X X X X Extracts X X X X
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