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TMI Blog1991 (9) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... imprisonment for three months under the first count, and further convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,500/- and in default to rigorous imprisonment under the second count. Both the substantive sentences were ordered to run concurrently. The accused preferred an appeal before the Sessions Judge. The appeal was accepted by the Additional Sessions Judge, Amritsar, by his order dated January 14, 1986, and both the accused were acquitted. Aggrieved by the acquittal, the Assistant Collector, Customs, has preferred this appeal. 2. According to the prosecution, secret information was received by the Preventive Staff of the Customs Department on February 6, 1981, that the accused were proceeding with sm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were summoned and tried. 3. At the trial, the complainant examined Inspector Piara Singh (PW-1), J.R. Bhalla, Superintendent (Preventive) (PW-2) and also relied on the statements Exhibit PF made by Rohit Kumar accused and Exhibit PH made by Kapil Mehra. In their statements, the accused admitted having been found in possession of gold biscuits with foreign marking in the circumstances mentioned while giving the prosecution version. 4. The plea of the accused was one of denial and false implication. The accused examined Rajinder Kumar (DW-1) and Ajay Kumar (DW-2) in defence. Both the defence witnesses stated that nothing incriminating was recovered from the accused when their search was taken by the Customs Authorities. Rajinder Kumar (DW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cution and unless it was established by satisfactory evidence that what was required was gold, the presumption referred to in Section 123 of the Customs Act did not arise. His second submission is that there was no case made out against the co-accused Kapil Kumar and he could not be convicted merely because he happened to be travelling with the other accused and was related to him. In support of his submission, learned Counsel relied on Central Excise Deptt.; Bangalore v. P. Somasundararn, 1980 Crl. L.J. 533 and V.P. Sayed Mohammed v. Assistant Collector of Central Excise, Calcuta, 1973 Crl. L.J. 1551. In both these decisions, which were rendered by a Division Bench of the Karnataka High Court and a learned Single Judge of Kerala High Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court in Rajendra Kumar's case (supra) was of no avail to the accused. 8. We have carefully considered the respective contentions of the learned Counsel. 9. We may at the outset refer to a special provision with regard to burden of proof given in Section 123 of the Customs Act, 1962. It reads as follows :- "123. Burden of proof in certain cases : - (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be - (a) in a case where such seizure is made from the possession of any person, - (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... range of its eye-sight. It was added that the circumstances have to be viewed from the experienced eye of the officer who is well-equipped to interpret the suspicious circumstances as to form a reasonable belief in the light of the said circumstances. 11. In State of Maharashtra v. Natwarlal Damodardas Soni, AIR 1980 SC 593 = 1983 (13) E.L.T. 1620 (SC), it was held that even in cases where Section 123(1) of the Customs Act is not attracted, the prosecution can discharge its burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the goods in question were smuggled goods, and the accused had the requisite guilty knowledge in respect thereof. The incriminating circumstances in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat such a confessional statement is not hit by Article 20(3) of the Constitution of India. There was no reason, even remotely suggested, that the aforesaid official witnesses had any axe to grind or why they would let off the real culprit and plant the huge quantity of gold on Rohit Kumar accused. The fairness of the whole operation is evident from the fact that while recovery was alleged against Rohit Kumar, no incriminating article was recovered from his brother Kapil Mehra. 13. For the reasons discussed above, we find that the reasoning of the lower appellate Court cannot be sustained. It is not consistent with the law expounded by the apex Court, to which reference has been made in the earlier part of this judgment. We are further of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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