9911796707
TMI Blog1994 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... cious manner. On inquiry, it was found that the said truck had unloaded some contraband articles at some Wadi. Police and the officials of the Customs Department, found out that goods had been unloaded at the Wadi of the appellant at Iklora. A search was carried out in the said Wadi, and on digging the ground near a well 101 silver ingots, weighing 3,274.98 kgs., worth about 18,08,850/-, were recovered. The said silver ingots were neither covered under any transport voucher nor any of the requirements contemplated under Chapter IVB of the Act, were found to have been complied with. The Customs officials had reasonable belief that the said silver ingots had been stored at the Wadi of the appellant, for the purpose of illegal export and as such liable for confiscation. Further investigation disclosed that the said silver ingots had been brought by two motor trucks bearing Nos. M.H.T. 2304 and M.R.T. 2751. So far the truck No. M.H.T. 2304 was concerned, which was spotted out first moving in a suspicious manner, was carrying contraband silver ingots 20 in number. Several persons including the drivers and owners of the trucks were made accused in connection with the said recovery. The o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed nor the F.I.R. was recorded by the police. It was pointed out that when the Customs Officer recorded the statement of the appellant, in that case he was not formally accused of any offence and as such the statement recorded by the Inspector of Customs was not hit by Article 20(3) of the Constitution. In that connection, reference was made to the judgment of this Court in the case of R.C. Mehta v. State of West Bengal (1969) 2 SCR 461 = AIR 1970 SC 940. As such the statement made by the appellant under Section 108 of the Act, can be used against him. The appellant stated in clear and unambiguous words (i) that the Wadi belonged to him by saying twice "my Iklora Wadi" (ii) Customs personnel came at night and took away "101 silver bars, which were buried near the well". At the time of trial, the appellant took a stand that the Wadi did not belong to him, it belonged to his wife and as during the recovery of the silver ingots, he was not present at the Wadi, no inference of guilt against him could be drawn. 5. On behalf of the appellant, nothing has been brought to our notice to reject his statement under Section 108 of the Act, saying that said statement was not voluntary or made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. 3. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under any other law for the time being in force with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both." 8. As such if any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the Act with respect to such goods, even then he shall be punishable with imprisonment as prescribed under the said Section. In other words, the person must be concerned in any fraudulent evasion or attempt at evasion of any prohibition imposed under the Act. In the instant case, the `silver bullion' had been declared as specified goods and the inland area of 50 kilometers in width from the coast of India including the area in which the Wadi of the appellant was situated had been declared as `specified area' under the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... That is why, the Parliament has introduced Section 138A in the Act. Section 138A says :- "138A. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution. (2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability." This Section had come in force before the trial commenced. The provision relates only to burden and nature of proof at the trial, as such it was applicable in the present case. In view of the aforesaid Section, a presumption has to be drawn, in respect of existence of the alleged mental state. An option has been given to the accused to prove by way of defence the fact, that he did not have any such mental state with respect to the act charged which is an offence. It can be said that the provision afor ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
