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TMI Blog1969 (2) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... y Station, noticed the accused hurriedly entering the platform and boarding the Secunderabad Express train. It was stated that the accused then wore a frightened look which aroused suspicions in the mind of the constable. They, therefore, interrogated and took him to the V.T. Police Station and produced him before Inspector Sawant. The Inspector collected panchas and in their present took a search of the person of the accused when it was found that the pocket of his under-wear contained three packets in which there were seven slabs of gold, each weighing 10 tolas, with marking "Jonson Mathey, London". Indian currency of Rs. 1,340 was also found on him. The slabs as well as the currency were attached under a panchanama. On the following day the accused along with the property was produced by the police before the Superintendent Central Excise, Mr. R. S. Nayamapalli. The Customs authorities took charge of the slabs believing that it was smuggled gold with foreign markings. A statement of the accused was also recorded by P.W. 3 Shri Tipnis the Inspector of Central Excise. 3.Ultimately the Assistant Superintendent of Customs filed a com-plaint against the accused on 13th March, 1967, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 111(d) of the Customs Act as they were smuggled goods and that he had acquired and kept in his possession this gold in contravention of the provisions of Rules 126H and 126-I of the Defence of India (Amendment) Rules, 1963, as well. Consequently, he has been found guilty of the offences charged against him and has been sentenced as already stated above. 6. In this appeal the findings recorded by the learned Magistrate that the seven slabs were of gold, that they were of foreign origin and were imported in contravention of the provisions of the Customs Act were challenged. It was also submitted that the learned Magistrate was in error in finding that these slabs were recovered from the person of the accused. As for the charge under the Defence of India Rules it was submitted that there is no evidence to show that the slabs alleged to be gold were of the purity of not less than 9 carats and that the accused had acquired them after the Defence of India Rules came into force. Section 135(b), so far as is relevant for our purpose, provides :- "135. Without prejudice to any action that may be taken under this Act, if any person - (b) acquires possession of or in any way co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation and, therefore under section 135 (b) of the Customs Act, 1962. Acquiring possession of or being concerned in carrying, removing concealing, etc., or in say other manner dealing with any such gold which is brought into India from any place outside India in contravention of the aforesaid Notification, is an offence punishable under Section 135 of that Act. 11.In this case the first charge against the accused was that he was concerned in carrying and concealing the seven slabs of gold which he knew or had reason to believe were liable to confiscation under section 111(d) of the Customs Act. In order, therefore, to bring home the charge to the accused what the prosecution will have to establish is that the seven slabs of gold which were imported into India in contravention of the provisions of the above notification, were found in possession of the accused. On behalf of the accused it is in the first instance contended that there is no evidence to show that the seven slabs are of gold and that they were imported into India. It is also contended that there is no evidence to establish that the accused was found in possession thereof. 12.In order to prove that the seven slabs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court to take a judicial notice of this fact. From the mere markings, therefore, it is impossible to conclude that this gold is of foreign origin. 14.Even assuming for the sake of argument that such an inference can be drawn from the markings on these slabs, the next point that arises is whether there is anything to show that this gold has been smuggled into India in contravention of the provisions of the Notification. In this behalf the prosecution has no direct evidence. Reliance, however, is placed on the provisions of Section 123(1) of the Customs Act, 1962, which shift the burden of proof in certain cases to the shoulders of the accused. It provides : "123 (1) where any goods to which this section applies are seized under this Act 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 the goods were seized." Sub-section (2) explains as to what goods this section would apply. It may be mentioned that "gold" is among these goods. Under sub-section (1) quoted above, the burden shifts to the person from whom goods are attached when goods are seized by the Customs Officer. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orities under the Act. While dealing with the point, Their Lordships observed in para 8 of the report as under :- "ASSUREDLY when the goods are delivered to the Customs authorities by the Magistrate they are not taken from the possession of the person accused in Criminal Case as to throw the burden of proof on them .......... when the goods were seized by the Police they ceased to be in the possession of the accused and passed into the possession of the police .......... .The suggestion that the goods continued to be, at that stage in the possession of the accused does not embody a correct appreciation of the law as regards possession. A "Seizure" under the authority of law does involve a deprivation of possession and not merely of custody and as to when the Police Officer seized the goods, the accused lost possession which vested in the Police." On the authority of the above ruling, therefore, it is impossible to hold in the present case that the gold slabs were seized by the Customs Authorities from the possession of the accused. The burden of proof that they are not smuggled goods, therefore, would not shift in the present case to the accused. But the prosecution will have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e fate, and against that order they preferred the appeal to the Supreme Court. The short point that was, therefore, before their Lordships of the Supreme Court in that case was whether the order made by the Collector of Customs for the confiscation of the gold on the ground that it was smuggled gold, was justified. In order to reach his finding about the gold being smuggled, the Collector had referred to the conduct of the appellant in connection with (a) the credibility of the story about the purchase of this gold from three parties, (b) the price at which the gold was stated to have been purchased which was less than the market price, and (c) the hurry exhibited in trying to get the gold melted at the refinery with a small bit of silver added so as to reduce the fineness of the gold and thus approximate the resultant product to licit gold found in the market. Their Lordships while dealing with the contention of the appellants observed:- "Though, no doubt, there was no direct evidence that the gold which was the subject of adjudication had come into the country after March 25, 1947 when the first notification under the Foreign Exchange Regulations Act placing a ban on the import ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s accosted by the police, naturally he feels nervous. It is not, therefore surprising that the accused should have looked frightened to the constable when he was accosted. 17.In my opinion, therefore, in the present case the prosecution has utterly failed to establish that these 7 slabs of gold are of foreign origin and were imported into India in contravention of the Notification referred to above. On this ground alone, therefore, the order of conviction passed against the appellant for the offence under Section 135(b) (ii) must be set aside. 18. In view of my findings above, it is needless for me to go into the question whether these slabs were in fact recovered from the possession of the accused. The accused does not claim them and disputes that they were recovered from the possession of the accused. The accused does not claim then and disputes that they were recovered from his possession. 19.Now turning to the charge under the Defence of India Rules, rule 126(H)(2)(d) provides : "Save as otherwise provided in this part no person other than a dealer licensed under this part shall buy or otherwise acquire or agree to buy or otherwise acquire, gold not being ornament, exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that in fact in this case Mint Master's Report has been obtained by the Customs Authorities to whom these slabs were sent for examination, but through oversight it has not been produced on record. He, therefore, submitted that the prosecution should be allowed to lead additional evidence to establish that these slabs of gold are of a purity of not less than nine carats and above. In this respect Mr. Bhonsale relies on the provisions of section 428 Code of Criminal Procedure. Under that section, the Appellate Court is empowered to take additional evidence either itself of direct it to be taken by the trial Court But it must be remembered that this power can be exercised only where there are special reasons and the Court thinks that additional evidence is necessary. In the present case, it was the duty of the prosecution to lead satisfactory evidence in the trial Court. But although as stated by Mr. Bhonsale, Mint Master's report was in their possession, it was not produced by the prosecution in the trial Court and the prosecution now wants an opportunity to lead that evidence when the lacuna in the evidence was pointed out. In my opinion powers under Section 428 Code of Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X
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