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TMI Blog1979 (2) TMI 216X X X X Extracts X X X X X X X X Extracts X X X X ..... n of proving the guilt of the respondent. 3. Therefore, the short question before me is whether Section 123 is attracted in the present case and whether the burden lies on the respondent/defendant to prove that the goods in question were not smuggled goods. 4. The goods were seized from the petitioner by the police. The accused and the goods seized were taken to the Police Station and a panchanama was prepared. Thereafter the goods were handed over by the Police to the Customs Authority. It is evident that the seizure of the goods was not made by the Customs Authority. The expression seize was defined by the Supreme Court in Gian Chand v. State of Punjab , AIR 1962 SC 496, in the context in which it is used in the Act. That word was stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by him was not correct. 6. It is argued by Shri Dias, learned Govt. Advocate that in Balumal Jamnadas Batra v. State Of Maharashtra , (1975) 4 SCC 645 : AIR 1975 SC 2083, the seizure was made by the Police and yet the burden was cast on the accused to prove that the goods were not smuggled. What was decided in Balumal's case ((1975) 4 SCC 645 : AIR 1975 SC 2083) was not that a seizure made by the Police was a seizure within the meaning of S. 123 of the Act. The question raised there was that even if the provisions of S. 123 were not applicable, a presumption under S. 106 read with Sec. 114 of the Evidence Act was sufficient to enable the prosecution to ask the Court to presume that the appellant knew that the goods had been smuggled or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case the accused had an opportunity to explain how and why the goods were in his custody. He made a bald denial that the goods were in his custody and thereby failed to avail of the opportunity of explaining satisfactorily the custody of those goods, which from their description, were clearly smuggled goods. In the present case the explanation given is plausible and satisfactory. The presumption of S. 106 read with S. 114 of the Evidence Act does not arise. 7. This is an appeal from an order of acquittal. There is no doubt that my powers to re-assess the evidence and reach my own conclusions are as extensive as those which this Court would have in an appeal against conviction. As a rule, of prudence however, I have to give weightage to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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