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TMI Blog1994 (2) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted the first accused and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-. Against this the first accused filed an appeal. The Principal Sessions Judge, Madras who heard the appeal found him not guilty and therefore he set aside the Judgment of the trial court and acquitted him. As against this order of acquittal the Assistant Collector of Customs has filed this appeal. 2. The case of the prosecution is that the appellant - first accused arrived at Madras Air Port from Singapore on 25-2-1986 by an Air India flight. He brought two brief cases - M.Os. 1 and 3. P.W. 1 Air Customs Officer found the handles of the two brief cases heavy, and on examining them he saw one of them con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by Janarthana Iyer; Kumar told on 24th that he had purchased all items of things and he must get ready to go to Madras; Kumar gave two brief cases, one suit case and a plastic bag to be taken to Madras. Kumar told him that there was one Funai Video Cassette Player and other items valued at 400 Singapore Dollars and he should inform the Customs authorities accordingly and his friend to whom the first accused had been already introduced at Madras would meet him at the Air Port and he would pay the amount for paying Duty; he came to Madras with the said brief cases and other things; at the Air port he declared one V.C.P. and the other things worth about 350 Singapore Dollars; for that the Customs Officer gave a Customs Duty Bill for Rs. 4,600 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y are gold bits the prosecution failed to prove that the first accused knew or had knowledge that the handles of the brief cases contained gold bits, and thus the prosecution failed to prove that the accused is guilty of the offence with which he is charged. 8. The first finding of the Appellate Court that the prosecution has not proved that M.Os. 2 and 4 series are gold bits is manifestly erroneous. The accused in his statement Ex. P. 3 has clearly stated that the handles of the brief cases were broken by P.W. 1 Air Customs Officer, and he found it to contain gold bits. The evidence of P.W. 1 that the handles contained gold bits has not been challenged. In view of this, the answer given by the accused during his questioning under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... used went to Singapore and there he as instructed by his brother Janarthana Iyer met one Saleem and they both purchased gold biscuits, and in Saleem's house they cut them into ten pieces out of which Saleem concealed six bits in one brief case and the remaining four pieces in the other brief case, and handed over the brief cases to him; this happened on 23-2-1986 and on the same day they purchased some other goods; his brother Janarthana Iyer told him to come to Madras at the earliest but he could get confirmation of only one ticket and he handed over the brief cases to the first accused and sent him to Madras telling him to hand over the gold concealed in the brief cases and the V.C.P. and other goods to one Hussain who would receive him a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from Singapore and they were seized from him it cannot be said that he was aware or had knowledge that the handles thereof contained gold bits. 13. It is however argued that under Section 138A of the Customs Act, in any prosecution for an offence under the Customs Act which requires a culpable mental state on the part of the accused, the court shall presume such existence of mental state, and it is for the accused to prove the fact that he had no such mental state, and in this case the Ist accused has not let in any evidence to rebut the presumption. But to rebut the presumption of existence of mental state under Section 138A there need not be direct evidence, and the rebuttal can be gathered from the circumstances in the case. The accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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