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TMI Blog2018 (9) TMI 514X X X X Extracts X X X X X X X X Extracts X X X X ..... urts and the authorities in India. When there is such a finding, it can be only said that in a prosecution under Section 135 of the Customs Act, the primary burden of the prosecution has been discharged - the burden as such will not be upon the appellant, as in a proceeding under Section 111 of the Customs Act. Surely, the burden upon the respondent is not that as in a civil proceedings. The impugned judgment of acquittal is hereby set aside and the matter is remanded back to the trial Court to decide afresh after affording opportunity to the parties to adduce evidence, if any, they want to produce - appeal allowed by way of remand. - CRL. A. No. 1713 of 2004 - - - Dated:- 28-2-2018 - K.P. Jyothindranath, J. Shri John Varghese, N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd Exts. P1 to P7 marked. On the side of the defence, Exts. D1 to D3 also marked. After appreciating the evidence, the court below acquitted the accused. The said acquittal order is under challenge in this appeal. 3. When the appeal came up for hearing, the Learned Counsel appearing for the appellant/customs, submitted before this Court that there was an earlier proceedings under Section 111 of the Customs Act, 1962, that the above referred 30 gold biscuits were confiscated by the Customs Commissioner and penalty imposed. The said order was challenged before the tribunal and was modified. Thereafter, a writ petition was filed before the Hon ble High Court of Kerala, which was a reported decision, Rajendra Prabhu v. Union of India 1999 (1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d, in an appeal, even if the other view is also possible, the appellate Court need not set aside the judgment. In a subsequent judgment, the confiscation of the gold biscuits might have been upheld by the Supreme Court. But, it is only a judgment relating to the confiscation. It has nothing to do with a criminal prosecution. The finding of the Apex Court cannot be imported to this case and unsettle the acquittal order. The Apex Court considered another set of materials for the purpose of confiscation alone. In the case of proceedings under Section 135, whether the respondent was having the mens rea by which a sentence has to be imposed has to be considered. 6. In this case, the short point to be considered is that, whether the acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X
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