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TMI Blog1967 (3) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... ed is as follows. - On 17-9-1963 at about 11 A.M., respondents 1 to 5 and the absconding accused Kabir Maracair were coming in a car MSX 367 from Kolhapur side with high speed. At the Akol Check Post at Nipani, this car was stopped by P.W. 3 Alankhan P.C. 827 and Ramachandra P.W. 14 a Central Excise Constable. Immediately, the absconding accused Kabir who was driving the car, jumped from the seat and ran away. The car was searched and checked by the Central Excise Authorities. P.W. 1 A. Farias, Superintendent of Excise, in the presence of Panchas, got removed the bolts fixed on the foot-boards and inside the footboards he discovered six cloth jackets containing altogether 5,500 tolas of gold valued at Rs. 7,15,000 with foreign markings. These were seized under a mahazar Ex. P. 33. Thereafter the respondents 1 to 5 and the articles found in the car were taken to the office of the Assistant Collector of Central Excise. Nothing incriminatory was recovered from either the persons or the belongings of respondents 1 to 5. But, from the suit-case belonging to Kabir which was in the car, a sum of Rs. 13,220 in cash was recovered. The Customs authorities recorded on different days at differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the fact that the evidence discloses that there were six jackets wherein gold was concealed and the number of occupants of the car was also six. Shri Keshava Iyengar also points out that the respondents in their statement gave out the name of Kabir as Karuppiah Pillai. Shri Keshava Iyengar also points out that the respondents in their statement gave out the name of Kabir as Karuppiah Pillai. Shri Keshava Iyengar also points out that some of the respondents in their statements have stated that they knew that the gold belonged to Kabir. 6Shri Keshava Iyengar has strenously urged that the. language used in Section 135 (b) of the Customs Act, is very wide. A person who deals in any manner with any goods which he knows or has reason to believe, is smuggled, would be guilty of an offence under Section 135 of the said Act. Shri Keshava Iyengar also strongly relies on Section 123 of the Act wherein if any goods were seized in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession of the goods were seized. In support of his arguments, Shri Keshava Iyengar has relied on AIR 1965 Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abhdas Liladhar v. Asstt. Collector of Customs (1983 (13) E.L.T. 1408 (SC) 1965 Supreme Court 481) their Lordships have observed as follows: "……..Once it is proved that the gold is smuggled gold, it follows that it was brought into the country without payment of duty or in violation of the prohibition of restriction in force and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the Section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction." Here again, their Lordships have pointed out "whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled' would be guilty. Their Lordships have stressed that the persons dealing with it must know that it is the smuggled gold. 9In the. Collector of Customs, Calcutta v. Seetharam (AIR 1966-935) their Lordships have held "Even attempts to purchase smuggled goods come within the ambit of the words in any way concerned in any manner dealing with prohibited goods in CI.81 of the Section and thereafter the clause applies even to a case when a person has negotiated for the purchase of smuggled goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n evidence. Their Lordships acquitted the appellant on the ground that the prosecution has not proved that the appellant was in exclusive possession of the Ganja found in the Car. As the confessional statement was inadmissible, there was no evidence to show he was in possession of Ganja. As pointed out already, the acquittal of the other five persons who were travelling in the car was not challenged in that case. In the instant case, the contraband goods were not kept in the front leg space and luggage boot but they were hidden in some secret recess of the foot-board which may be not possible for any ordinary passenger of the car to know. Even though, in that case, the car belonged to the appellant's brother and he had the key of the luggage boot of the car and some ganja was placed near the seat where he was sitting, their Lordships acquitted him on the ground that the proof of possession was not forthcoming. In the instant case, there is no evidence at all to show that any of the respondents were in possession, much less exclusive-possession of the gold seized from the car. On the other hand, the evidence clearly shows that the car was purchased benami by Kabir and it was taken b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the gold was discovered at the customs authorities. As the car was taken by Kabir to Bombay and back and immediately when the car was stopped. Kabir ran away and as the gold did not belong to any of them, the natural inference that they drew was that the secreted gold belonged to Kabir. 12.After reassessing the entire evidence in the case, it is not possible to say that the respondents were either in possession or were in any way concerned in carrying smuggled gold. There is no evidence to show that they had any knowledge or had any reason to believe that Kabir was carrying any smuggled gold. In our opinion, the prosecution also cannot rely on Section 123 of the Customs Act as the presumption will arise only when the smuggled goods is seized from the possession of the respondents. From the state of the evidence, it is not possible to say that any of the respondents were in possession of the gold secreted in the car. So far as respondent 6 Krishnan is concerned, he was admittedly not one of the passengers in the car at the time of the seizure. The mere fact that the car had been registered in the name would not be sufficient to hold that he either aided or abetted in the carrying ..... X X X X Extracts X X X X X X X X Extracts X X X X
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