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TMI Blog1967 (2) TMI 34X X X X Extracts X X X X X X X X Extracts X X X X ..... fence under Section 135 of the Customs Act, 1962, and sentenced to undergo simple imprisonment for four months by the learned Magistrate. In this appeal, the correctness and legality of the order of acquittal of the respondent (accused-1) is challenged. The prosecution case, briefly stated, is as follows :- The respondent arrived from Bombay by plane at the H.A.L. Airport, Bangalore, on 20-2-1964 at about 5.20 P.M. He was carrying a suit-case and tried to get into a taxi at the Airport. The behaviour of the respondent roused the suspicion of P.W. 1 Kulkarni, who was the Inspector of Central Excise and Customs on vigilance duty. When questioned, the respondent did not give satisfactory answers and the suit-case in his hands was very heavy. P.W. 1 Kulkarni took the respondent to the security room and in the presence of P.W. 2 Vaitheswaran, Traffic Assistant, Indian Airlines Corporation, he searched the suit-case and inside it in a pillow-cover, 23 pieces of gold each weighing 10 tolas were concealed; 20 other similar pieces of gold were kept in the suit-case wrapped in a Turkey-towel. All these gold pieces had foreign markings. They were seized under the mahazar, Exhibit P-4. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on of the gold pieces and was not guilty of the offences with which he was charged, and acquitted him. 4.Sri Keshava Iyengar, learned Central Government Pleader, appearing on behalf of the appellant has contended that Exhibit P-6 was a voluntary statement made by the respondent and it was not shown that it was got by threat or coercion and the learned Magistrate was wrong in discarding the same. He also argued that even excluding Exhibit P-6, there was overwhelming evidence against the respondent to justify his conviction of the charges framed against him. Sri Keshava Iyengar also stressed the fact that as the respondent has not disputed the seizure of the gold pieces and as they were seized by the Customs authorities under the reasonable belief that they were smuggled goods under Section 123 of the Customs Act, the burden of proof is shifted to the respondent to establish that they were not smuggled goods. From the evidence and the facts and circumstances of this case, he argues, the only inference that can be drawn is that the respondent was in conscious possession of smuggled gold. He contends that the order of the learned Magistrate is manifestly erroneous and there are compe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances from which a prima facie opinion can be formed that the statement is not voluntary and is induced by threat or promise, with reference to the charge against the respondent. 9.P.W. 1 Kulkarni, Deputy Superintendent of Central Excise and P.W. 4 Rajadurai, Superintendent of Central Excise, have spoken to the recording of Exhibit P-6. They have both denied that any threat, inducement or promise was hold out to the respondent when Exhibit P-6 was recorded. It is interesting to note the different suggestions made on behalf of the respondent at different stages of the case to different persons. The suggestion made to P.W. 1 Kulkarni was that the interrogation of the respondent went on till early morning and that there was an earlier statement made by the respondent which was torn. Later, when P.W. 4 Rajadurai was examined, the suggestion made to him was that he made the respondent stand throughout the night and did not allow him to sleep and being disgusted, the respondent agreed to sign whatever was written. When questioned under Section 342 Cr.P.C. about Exhibit P-6, the respondent stated that P.W. 4 Rajadurai got prepared a statement and forcibly took his signature and that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inducement, threat or promise from the respondent. Nor is there any material to show that any threat, inducement or promise was held out which was sufficient to cause reasonable belief in the mind of the respondent that he would get, by confessing, advantage or avoid any evil of a temporal nature in reference to the proceedings against him, as is laid down in Pyare Lal Bhargava v. The State of Rajasthan (AIR 1963 Supreme Court 1094) referred to above. We are therefore of opinion that Exhibit P-6 is not hit by Section 24 of the Evidence Act and the learned Magistrate was wrong in rejecting Exhibit P-6. 11.If Exhibit P-6 can be relied on against respondent, it clearly shows that the respondent knowingly undertook to transport the 43 pieces of gold from Bombay to Bangalore on payment of a commission of Rs. 400. P.W. 3 Acharya who is a jeweller and appraiser of the Canara Syndicate Bank has stated that these 43 pieces of gold were of 24 carat purity and were of foreign origin. We have already pointed out that all these pieces of gold bore foreign markings. Hence in view of this evidence, it is clear that the prosecution has established beyond reasonable doubt the charges against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ignoring Exhibit P-6, we will examine the defence put forward by the respondent. In the affidavit, Exhibit P-14 produced by accused-2, a theory is put forward and he handed over one packet containing gold to the respondent without informing him that it was gold. It may be pointed out that Exhibit P-14 was produced by accused-2 only on 22-4-1965, a year and two months after the seizure of the gold from the respondent, which was on 20-2-1964. It may further be pointed out that in the said affidavit sworn to before a Magistrate, the second accused has specifically stated that he entrusted one packet containing gold at Bombay to the respondent on 20-12-1963. So, the entrustment of one packet containing gold to the respondent was two months before he transported it from Bombay to Bangalore. It may also be pointed out that the case of accused-2 throughout was that he handed over one packet containing gold. But, when the said gold was seized in the Airport from the suit-case of the respondent, they were not found in one packet, but 23 pieces were found hidden inside a pillow-cover and 20 pieces were wrapped up in a Turkey-towel. This clearly shows that even assuming for the sake of argum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have intention of evading the payment of duty or violating the prohibition or restriction.'' In Assistant Collector of Customs, Calcutta v. Sitaram [1999 (110) E.L.T. 292 (S.C.) = AIR 1966 Supreme Court 955] their Lordships stated that "the words in any way concerned in any manner dealing with 'prohibited goods' in section 167(81) of the Sea Customs Act, 1878, are of very wide import. The word 'concerned' would mean 'interested in', 'involved in' and 'mixed up with'." The words used in Section 135 of the Customs Act, 1962, are in pari materia with those in Section 167(81) of the Sea Customs Act, 1878. On evidence on record, there is no difficulty in holding that the respondent possessed or was in any way concerned in carrying or dealing with imported goods and his intention was to evade the payment of duty. 17.It is clear that even though a person is not a direct importer, or in any way concerned in such direct import of smuggled goods, any person who knowingly deals with such smuggled goods, would come within the ambit of Section 135 of the Customs Act. This ..... X X X X Extracts X X X X X X X X Extracts X X X X
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