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TMI Blog1970 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... had been charged. 2.The facts of the case are that, in consequence of information received by them, the police kept a watch outside a building named Bihari building somewhere at Cotton Green on the evening of the 1st March 1967, and they noticed the accused coming out of that building at about 7.15 p.m. with a cloth bag in his hand. On suspicion, the police stopped the accused and took him to the police station where he was searched in the presence of panchas, and it was found that in a cavity in the sole of the sandal which he had worn on the left foot there were 10 gold biscuits with foreign markings, and in the heel of the same sandal there was one more gold biscuit also with foreign markings. In a similar cavity in the sole of the san ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsp; There is no evidence led by the Prosecution to prove that the 11 gold biscuits in question were goods which had been imported contrary to the prohibition in force for the import of gold since the year 1947, or in other words, that it was, as is popularly called, smuggled gold; and 3. There is no evidence led by the prosecution to prove that the accused knew or had reason to believe that it was gold which had been imported contrary to such prohibition, or in other words, that it was smuggled gold. I shall now proceed to deal with each of these contentions of Mr. Mehta as, in the event of his succeeding in any one of them, the accused would be entitled to an acquittal and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been in possession, or which is alleged to have been carried concealed or otherwise dealt with, must be proved to be property liable to confiscation under section 111 of the said Act. The burden of proving that fact is on the prosecution and, as the Supreme Court has laid down in the case of Ambalal v. Union of India [1983 (13) E.L.T. 1321 (S.C.) = A.I.R. 1961 SC 264], section 106 of the Evidence Act has no application to proceedings under the Customs Act (paras 5 and 8). Reliance was however sought to be placed by the Assistant Government Pleader on the provisions of section 123(1) of the Customs Act, 1962, which, it may be stated, are verbatim the same as the provisions of section 178A (1) of the Sea Customs Act, 1878. In that connection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... servations made by the Supreme Court in its unreported judgment dated 2nd April 1968 in Cr. Appeals Nos. 195 and 203 of 1962 and 6 of 1963, that the mere fact that the gold had foreign markings on it did not prove that it was smuggled gold, for it could have been imported before the present restrictions on the import of gold came into force, as was observed by the Supreme Court in that case. It is true that the mere fact that there are foreign markings on the gold seized in the present case cannot necessarily lead to the conclusion that it was smuggled gold, but I would prefer to follow the view by the Supreme Court in another case on the same point, and that is, in the case of Issardas Daulat Ram v. Union of India (A.I.R. 1966 S.C. 1867) i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the prosecution to establish this fact before it can bring home the offence under section 135(b) of the Customs Act read with section 111 (d) of the same Act. It is precisely because the legislature realised the difficulty of proving this fact that it has inserted Sec. 178A in the old Sea Customs Act of 1878, and has enacted Section 123 in the present Customs Act of 1962. Unfortunately for the prosecution, however, since the seizure of the gold was not made by the Customs authorities themselves and the gold could not therefore be said to have been seized under the Act, the prosecution is unable to avail itself of the said section 123, as laid down by the Supreme Court in the decision referred to above. 6.The only question that survives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing to the import of gold within the terms of section 111(d) of the Customs Act, 1962. In that view of the matter, the offence under Section 135(b) of the Act has not been proved by the prosecution and the accused is entitled to an acquittal in respect of the same. Having regard to this conclusion at which I have arrived, it is not necessary for me to consider the third contention of Mr. Mehta that there is no evidence to show that the accused knew or had reason to believe that the said gold biscuits were smuggled gold, and I do not propose to deal with the same. 7.In the result, I set aside the conviction of the accused under section 135(b) of the Customs Act as well as the sentence passed upon him by the trial court in respect of that of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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