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TMI Blog1985 (5) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses. The accused is a partner of O.K. Agencies occupying the godown. During the search, 776 dozens of table-tennis balls of Chinese origin were recovered, and when questioned, the accused produced an invoice dated 4th August, 1976 which covered 950 dozens of table-tennis balls purported to have been issued by M/s. Allied Supply Syndicate of Calcutta. The accused merely showed the invoice and refused to handover the same to the Customs Officers. Accordingly, the 776 dozens of table-tennis balls were seized as they were clearly of foreign origin and since the accused was not in a position to account for the same. Therefore, the Customs Officers held that they were smuggled goods worth about Rs. 14,000. 3. Later, the customs department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fter framing of the charges, two more officers were examined as P. Ws. 5 and 6 who spoke to the statement given by the accused. The accused stated that the statement was obtained by the customs authorities and that he does not know the contents of the same. The accused then examined one defence witness as D.W.1 who is none else than his own clerk. 7. Learned Chief Metropolitan Magistrate held that the prosecution has not proved to the hilt that the goods seized were smuggled ones, but he came to the conclusion that the mere possession of the foreign articles by the accused was not an offence. Consequently, the accused was acquitted and hence the appeal against the acquittal by the customs department. 8. Now, the question for determina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were examined to prove that the goods were of foreign origin and that they were prohibited Items, that the possession of those articles by the respondent/accused was not accounted for and that the alleged invoice covering the goods was a bogus one. The learned Magistrate held that the table-tennis balls seized in the case are not notified goods under Section 123 of the Customs Act and that there is no direct evidence to show that the goods have been smuggled. 10. I have heard learned Counsel for the customs department and the learned Counsel for respondent/accused. I am satisfied that the reasoning and the conclusion of the trial court are clearly unsustainable and that they require interference in the interest of justice. 11. As alr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m, the presumption under the Act applies and the burden shifts on the person to account for possession of the same lawfully and licitly. On account of this fundamental wrong approach, the lower court has acquitted the accused holding that the prosecution must prove the actual smuggling of goods. Virtually, this is asking for an impossibility, and that is why the Legislature, in its wisdom, has shifted the burden on the accused to account for the possession when once a banned Item is found in possession of any person. This is precisely where Section 106 of the Evidence Act comes into play and the burden of proving the fact especially within the special knowledge of the accused is upon him. It is futile to expect the prosecutor in a customs o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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