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TMI Blog1988 (2) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... at Cochin. Second accused is a person belonging to Tamil Nadu and he was residing along with the first accused as his employee. Third accused is the Manager of a licensed export agency authorised by the Reserve Bank of India. The prosecution case is that the three accused attempted to export 90 bundles of palmirah leaf basket containing 134.595kgs. of Ganja concealed in them to Netherland. This was without the authority of a valid licence. 3. On 16.1.1985, the first accused sent the bundles to the third accused along with Ext. P24 letter through the second accused in a lorry. It was for the purpose of being exported to one Cocoa B.V. at Netherlands Ext. D1 is the contract between accused 1 and 3. It is dated 17.1.1985 and it shows that the third accused was acting only as the seller's agent. Third accused himself is only the Manager of the exporting agency. He was not present at the time when the goods were delivered by the second accused. The goods were received by PW 6 and kept locked in the godown till 8.2.1985, on which day the employees of the exporting agency produced them before PW1 for customs clearance preliminary to export. Export from any part could be had only throug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dence of accused i and 2. He was able to recover several incriminating items including the balance palmirah leaf baskets and Ganja as well as the materials used for packing and concealment. Photos of the Netherland purchaser were also recovered from the residence. Even though the godown of the third accused was also searched on the same day, nothing incriminating was recovered. 6. PW 4 frankly admitted that his enquiry was not capable of revealing any materials showing involvement of the third accused or his knowledge about the procurement of the prohibited dangerous drugs. On the other hand, the materials collected by him and the evidence adduced by the prosecution established that Ganja was procured by the first accused from one Mathew at Kattappana. So also, it is in evidence that this Mathew delivered Ganja at the residence of the first accused as per arrangements between them. It is also seen from the evidence that polythene bags and other items necessary for packing and concealing Ganja in the baskets were also procured by the first accused and along with the second accused, he worked for two days for the packing before bundling the baskets. The evidence of DW 1 supported t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a reasonable belief that the acquisition of possession is regarding items liable to confiscation for violation of the prohibitions. By an amendment of 1973 section 138(A) was introduced in the Customs Act. According to that provision, in any prosecution for an offence under the Customs Act which requires a culpable mental state on the part of the accused, the Court has to presume the existence of such mental state and if it is for the accused 'to establish that he had no such mental state with respect to the act charged as an offence by the prosecution. 9. So far as accused 1 and 2 are concerned, even without the presumption under section 138(A) of the Customs Act and section 32 of the Dangerous Drugs Act, the culpable mental state is sufficiently there. Though they denied the paternity of the statements contained in Exts P8 and P9 and pleaded that these documents were prepared in a language' riot fully understandable to them, I am not fully satisfied of that contention. Ext P8 statement of the first accused was recorded in English and Ext P9 statement of the second accused was recorded in Malayalam. The evidence of PW 4 shows that portions of the statement of the first accused h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l materials to support the same. The burden cast upon the accused to displace the presumption is also very heavy. Preponderence of probability, which is the normal criterion in other criminal cases regarding discharge of burden by the accused, is converted into one of proof beyond reasonable doubt. That is equivalent to the burden cast on the prosecution. Culpable mental state is the knowledge or the reasonable belief entertained by the accused. Acquisition of possession for being exported or attempted to be exported a prohibited item need not necessarily be as owner or purchaser of the goods. Such a narrow construction is likely to defeat the object of the provisions and undermine their efficiency as instruments for suppression of the mischief which the legislature had in view. In the light of the scheme of the status and the purpose of the provisions, the words 'acquired possession' are of vide amplitude capable of taking in acquisition of possession other than as owner or purchaser also. Even temporary control or custody of a carrier or keeper may be sufficient for the purpose. But one thing must be there. He must know or must have reason to believe that the goods are prohibited ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but there was no proof that it was imported. Their Lordships said that the presumption under section 32 of the Dangerous Drugs Act would have been available against the accused provided there was also evidence to show that what is possessed was imported dangerous drug covered by the prohibitions. 15. But the presumptions under section 32 of the Dangerous Drugs Act and section 138(A) of the Customs Act are not conclusive presumptions. In spite of the purpose behind the introduction of these presumptions, they are liable to be rebutted. No provision of law could be interpreted to be meant to convict an innocent person. Further, this is a case in which culpable mental state is an essential ingredient. Presumptions were introduced by the statutes only on account of the national interest involved and the practical difficulty on the part of the prosecution in all cases to establish the mental state. Instead of asking the prosecution to establish the presence of the culpable mental state, the statutes require the accused to establish absence of it by adducing evidence. From the facts already discussed by me in the earlier paragraphs, I am of the opinion that the prosecution evidence its ..... X X X X Extracts X X X X X X X X Extracts X X X X
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