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TMI Blog1997 (6) TMI 356X X X X Extracts X X X X X X X X Extracts X X X X ..... sed. Two witness viz., T.V. Rajaram and Ragu from Duty Free Shop were called to be first at that spot P.W. 1 questioned the accused in the presence of the said witnesses and P.W.2, as to whether he had any gold or contraband concealed in his person or in the baggage. The accused replied in the negative. P.W. 1 opened and examined the declared item T.V. in the presence of the witnesses, P.W. 2 and the accused. On opening the back side of the television he found a cylindrical electronic part in the P.C.B. had been tampered with. On opening the cylindrical part it was found to contain M.O. 4 series the seven gold bits covered with carbon paper. Three gold bits bore the markings Johnson Mathay London - 9990 - 10 Tolas. One gold piece had the marking 10 Tolas, Three small bits did not contain any markings (Being the cut-ends of the first 3 big bits) M.O. 4 series weighed 410 grams on weighment (separate pieces) and the market value of the same was ₹ 1,20,960/-. 3. The accused did not possess any permit or licence for the import of gold. He also did not declare the gold to the customs. P.W. 1 seized the above properties, under the cover of Mahazar (Exhibit P-2) as also the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sed by the trial court. 7. Aggrieved against such reversal of the convicting judgment of the trial court the State has preferred the above appeal before this Court. The main contentions of the State in the above appeal are as under : (i) The Court below has failed that under Customs Act, the purity of the gold smuggled need not necessarily be proved by the prosecution. (ii) That the Court below has further failed to note that the evidence of P.Ws 1 and 2 is clear to the effect that from out of the seizures three gold bits are of foreign origin and four other without such marking since 3 out of them being the cut ends of the other three kept concealed in the M.O. 2 Television and that the said seizures have been effected at the exit point and these vital aspects have not been challenged at all by the defence. (iii) The accused has not controverted that the seized material is gold and this vital aspect has not been considered by the Court below. Since admitted facts need not be proved inlant. (iv) The lower court has erred in its finding that only by chemical examination or by the test of tough-stone it can be identified whether the metal seized is gold or not. (v) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused; 3. Though Exhibit P. 6 and P. 7 are said to have been recorded on 18-7-1987 to the same effect Exhibit P. 8 is said to a have been recorded on 27-7-1987 with a delay of nine days - no tangible reason has been assigned by the prosecution for the delay in recording of the statement in Exhibit P. 8. 4. The sanctioning authority did not appeared before the Trial Court but allowed P.W. 4 the Preventive Officer to speak to the according of sanction by the Assistant Collector, Customs. 5. The evidence of PW. 1 does not speak about the statements of the accused given in Exhibit P. 6 to P. 8. 6. Sections 107 and 108 of the Customs Act contemplate that only by a general or special order by the Collector of Customs any other officers may be empowered to record the statements during enquiry - no such order has been filed by the PWs 1 to 3. 7. As contended in the answer to the question under Section 313 of Cr.P.C. by the respondent/accused, only to the dictates of the Customs Officials Exhibit P. 6 to P. 8 having reduced into writing and they are not voluntary statements by the accused; 8. No scientific test was held to confirm either the metal to be gold or the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficials with regard to the requirements of the said sections. 5. Whether the transmissions as contemplated and the proof shifted to the shoulders of the accused under Section 138A of the Customs Act have been cast off by the respondent in the circumstances of the case and in evidence. 6. Whether the Trial Court is competent and is justified in awarding a lesser punishment than what is contemplated as minimum punishment by the statute in the event of arriving at a conclusion to convict the accused. 7. Whether the lower Appellate Court is justified in setting aside the conviction and sentence of the Trial Court. 11. As far as the question concerning the M.O. 4 series whether the contraband seized are gold or any other type of metal much less pure gold of 24 carats as declared by the prosecution officials have been made points for debate by the respondent. Though the Trial Court had not doubts to be entertained with regard to the metals being gold and of the purity of 24 carats and of the value of ₹ 1,20,960/- as ascertained by the prosecuting official by simple and bare assertion from out of their long experience and from their own source, the first Appellate Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is very easy for the customs officials to know the weight of the same as they do in their usual course and there could be no strain to ascertain the market value on that particular date which is published in daily newspapers. Hence, no expert or scientific conclusions need be arrived at for ascertaining the above aspect of the contraband. 12. Further no much importance need be attached for expert opinion to decide a case of such nature as one in hand since it is well settled that the expert opinions are neither infallible nor conclusive proofs. Such cases could be decided mostly with materials that are gathered from various sources and circumstances such as the type and colour of the material which is patent, the point at which they were seized the non-production of any valid permit obtained by the accused from the Reserve Bank of India for the transport of the same or being in possession of, and the very admission on the part of the accused as to the nature of import of the materials into the country the non-rebuttal of the type of metal, asserted by the customs officials to be gold, on the part of the accused in his statement and the very status of the person from whom th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of proof expected from the accused under such circumstances is beyond reasonable doubt and not preponderance of probability. 15. In applying the above norms to the case in hand it is evident that no iota of evidence has been placed before the court either by oral or documentary evidence in proof of either the non-existence of the presumed culpable mental state on the part of the accused or in discharge of the burden cast with proof beyond reasonable doubt wherein the onus is heavily cast on the accused by law. In fact, there is no stiff resistance at all offered by the accused with valid evidence or strong circumstances being brought in rebut to the presumption of culpable mental state or to cast off the burden beyond reasonable doubts since they are firmly contemplated in Section 138A of the Customs Act. The accused would only of late simply deny certain things in a light manner. 16. Yet another defence now put forth by the respondent that the respondent was not in conscious possession of the contraband smuggled holds no water in the sense (i) that in Exhibit P-7 it is glaringly admitted that he was explained with the concealment of the contraband, by one Nazir to be safely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ry version of the confession made before the Customs Officer. In Surjeet Singh Chhabra v. Union of India Others reported in 1997 (89) E.L.T. 646 (S.C.) = Judgment Today 1996 (10) S.C. 239, it is held that in an unauthorised import of gold - confession by accused before the Customs Officers that though retracted is admissible and hinds the accused since Customs Officers are not Police Officers and there is also no contravention of the principles of natural justice. It is further held that the confession before the Customs Officer is admission and retraction cannot be accepted. `Where there is confession no need to allow cross-examination of Panch witnesses in view of confession. 19. In K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise, Collectorate, Cochin [Judgments Today 1997 (2) S.C. 120 = 1997 (90) E.L.T. 241 (S.C.)], it is reiterated holding that the appellant therein when he gave confessional statement under Section 108 of the Customs Act was not a person accused of an offence. It is further contemplated therein that `the appellant while giving statement under Section 108 of the Customs Act, was bound to speak the truth with the added risk of being pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Collector, Customs, who is fully empowered to deal with such affairs and whose authority to accord sanction is not questioned is patent to the effect that P.Ws. 1 to 3 acted only within their powers given by law. It is also much lamented by the defence that some irregularities have been committed on the part of the Trial Court in framing of the questions under Section 313 of the Code of Criminal Procedure and they were all omnibus in nature. A cursory glance of the questioning under Section 313 would reveal that they have been, to the extent required segregated for each and every deposition of the respective witnesses and the accused questioned with regard to the same. Moreover, such minor irregularities are not going to be the factors to decide the case of the nature i.e. one in hand. 24. In the above case it is not event the version of the defence that the confession statement had been obtained under threat or duress or inducement etc, so as to cast serious doubts on the contents of Exhibits P-6 to P-8. It is not the case of the defence that Exhibits P-6 to P-8 were not given by him at the place, time and in the manner alleged. The only objection was that they were given b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... warrants my interference which is necessarily called for in the circumstances of the case. In State of Maharastra v. Champalal Panaji Shah - 1983 (13) E.L.T. 1661 (S.C.) = AIR 1981 Supreme Court 1675 = 1981 (Crl.) Law Journal 1273, it has been well reminded by the Apex Court that no lighter view could be taken with regard to economic since they are susceptible to affect the economy of the country. In my view, even the Trial Court has taken a very lenient view in awarding the sentence on the accused and in fact more rigorous punishment should have been awarded on the respondent as a deterrent measure and unfortunately the appellant/State has not prayed for enhancement of punishment as a result of which I am left with no option but to confirm the judgment of the trial court, the Additional Chief Metropolitan Magistrate, E.O. II, Madras in E.O.C.C. No. 21 of 1988. Consequently, the judgment of the first Appellate Court below in setting aside the conviction and sentence of the Trial Court in Criminal Appeal No. 60 of 1988 passed by the Principal Sessions Judge, Madras is hereby set aside. 30. In result, the appeal is allowed setting aside the judgment of the First Appellate Court i. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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