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TMI Blog1979 (12) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... reign origin. (b) This gold was of 24 carat purity which was not available in India at the material time. This circumstance reinforces the inference of its being smuggled gold. (c) These gold biscuits were found concealed and stitched in the folds of a jacket specially prepared for this purpose. (d) The gold, was in the shape of gold biscuits and was of huge value, which at the then prevailing market rate, was ₹ 1,85,000. (e) After the seizure of this gold the accused absconded and continued to be a fugitive from justice till March 14, 1962. Thus the High Court was in error in acquitting the appellant of the charges under Section 135(1),(a) and (b) of the Customs Act - allow this appeal, set aside the acquittal of the accused, Natwarlal Damodardas Soni, and convict him under Section 135(1)(a) & (b) - 231 of 1973 - - - Dated:- 4-12-1979 - R.S. Sarkaria and O. Chinnappa Reddy, JJ. [Judgment per : Sarkaria, J.]. - This appeal by special leave is directed against a judgment, dated October 13, 1972, of the High Court of Bombay. 2. Natwarlal, respondent herein, was prosecuted in the Court of the Presidency Magistrate, 2nd Court, Mazgaon, Bombay, for offences, (1) und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Magistrate by his judgment, dated October 16, 1970, found that the charges had been established against the respondent. He rejected the defence story and convicted the respondent as aforesaid. 7. Aggrieved, the respondent preferred an appeal against his conviction to the High Court. The appeal was heard by a learned single Judge (Vimadalal, J.), who by his judgment, dated October 13, 1972, allowed the appeal, set aside the conviction of the respondent and acquitted him. Hence this appeal by the State of Maharashtra against that acquittal. 8. The High Court has held that the prosecution has failed to prove that the gold found in the house of the accused was gold on which duty had been evaded, or the import of which was prohibited and, in that view of the matter, the first and second charges framed against the accused must fail, and the further question as to whether the accused knew that the gold in question was smuggled gold does not really arise. The High Court refused to consider the decision of this Court in S. Banerjee v. S. Agarwal, (1966) 1 SCJ 111, which was relied upon by the counsel for the State, with the observation : "Suffice it to say that the observations in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Collector of Customs. 11. In Radhakishan v. State of U.P. (1963) Supp 1 SCR 408, the appellant was a postman. He and his father were living in the same house. Certain undelivered postal articles were recovered from an almirah in the house, the key of which was produced by the father. the appellant, Radhakishan was tried and convicted of an offence under Section 52 of the Post Offices Act, for secreting postal articles. One of the contentions raised on behalf of the appellant was that the search and seizure was illegal inasmuch as it was in contravention of the provisions of Sections 103 and 165 of the Code of Criminal Procedure. Mudholkar, J. speaking for the Court, repelled this contention, thus :] "So far as the alleged illegality of the search is concerned, it is sufficient to say that even assuming that the search was illegal the seizure of the articles is not vitiated. It may be that where the provisions of Sections 103 and 165, Code of Criminal Procedure, are contravened the search could be resisted by the person whose premises are sought to be searched. It may also be that because of the illegality of the search the Court may be inclined to examine carefully the evid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ightly rests upon those who ask society to ignore trustworthy evidence of guilts, at the expense of setting obviously guitly criminals free to ply their trade." 14. What has been said above is more than enough to show, that the first contention raised on behalf of the respondent is devoid of merit. 15. As regards the second contention canvassed by Shri Shiv Pujan Singh, we would say that even if the prosecution cannot invoke the provisions of Section 123, Customs Act to lighten the burden cast on it, there is sufficient circumstantial evidence to establish that the gold in question was smuggled gold. Before dealing with that evidence, it will be useful to notice the relevant provisions relating to the charges against the respondent. 16. First, we take up the charges under Section 135 of the Customs Act, 1962. The material part of that section reads as under : "135. (1) Without prejudice to any action that may be taken under this Act, if any person - (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to licit gold found in the market. The ratio of this decision was followed by this Court in Labhchand Dhanpat Singh Jain v. State of Maharahshtra, AIR 1975 S.C. 182. The appellant accused therein was trying to enter the Railway compartment at Bombay Station. Seeing his nervousness, the Railway police questioned him and searched his person and recovered nine bars of gold with foreign markings. The accused put forward an incredible story with regard to the possession of the gold. This Court held, that in the circumstances of the case, an inference could very well be drawn that the gold must have been imported after the law passed in 1948, restricting its entry, that the burden of proving an innocent receipt of gold lay upon the appellnt under Section 106, Evidence Act and that the totality of facts proved is enough to raise a presumption under Seciton 114, Evidence Act, that the gold had been illegally imported into the country, so as to be covered by Section 111(d) of the Customs Act. 19. It is to be noted that in Labhchand's case (ibid), Section 123 of the Customs Act was not applicable, as the seizure of the gold was by the police and not by the Customs Officer. The Courts in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... biscuits and was of huge value, which at the then prevailing market rate, was Rs. 1,85,000. (e) After the seizure of this gold the accused absconded and continued to be a fugitive from justice till March 14, 1962. 22. The circumstances catalogued above irresistibly lead to the conclusion that the gold in question is smuggled gold, having been recently brought into India from a foreign country without payment of duty, and further it had been brought into India in contravention of the Notification dated March 25, 1947 issued by the Central Government under Section 8(1) of Foreign exchange Regulation Act, 1947 prohibiting the import into India gold without the permission of the Reserve Bank. As already noticed, this gold was in the shape of biscuits of 24 carat purity and bore foreign markings. The accused respondent as held by the courts below was found in conscious `possession' or `keeping, of this gold of foreign origin about 15 years after its import into India had been banned. Therefore, it was for the accused respondent to show that it had been brought into India with the permission of the Reserve Bank. The existence of this fact viz., whether it had been imported with or with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . These Rules so far as material for our purpose, may be extracted as under : "126-H(2). Save as otherwise provided in this Part,- (d) no person other than a dealer licensed under this Part shall buy or otherwise acquire or agree to buy or otherwise acquire, gold, not being ornament, except, (i) by succession, intestate or testamentary or (ii) in accordance with a permit granted by the Board in this behalf." "126-P(2). Whoever.- (ii) has in his possession or under his control any quantity of gold in contravention of any provision of this Part; (iv) buys, or otherwise acquires, or accepts gold in contravention of any provision of this Part, shall be punishable with imprisonment for a term of not less than six months and not more than tow years and also with fine." 26. The High Court has held that those Rules do not apply because the accused respondent had not acquired possession of these gold biscuits by purchase or otherwise within the meaning of those Rules. Such a narrow construction of this expression, in our opinion, will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. As was pointed out by this Court in Balkrish ..... X X X X Extracts X X X X X X X X Extracts X X X X
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