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TMI Blog2002 (6) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 135(1)(i) of the Customs Act and Section 85(1)(a) of the Gold (Control) Act. After trial the learned Magistrate found the first respondent guilty of the offences under both sections. He was convicted and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo simple imprisonment for three months for the offence under Section 135(1)(i) of the Customs Act and to undergo simple imprisonment for three months for the offence under Section 85(1)(a) of the Gold (Control) Act. The first respondent filed Crl. A. No. 577/93 challenging the conviction and sentence imposed by the learned Magistrate. The II Additional Sessions Judge who heard the Criminal Appeal foun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is coming under Section 107 of the Act is also illegal and unsustainable, It is argued that in view of the proved facts learned Sessions Judge ought to have found the accused guilty of the offence punishable under Section 135(1)(i) of the Customs Act. 4.According to the prosecution, the accused was coming from Dubai in an international flight. He landed at Bombay and from Bombay to Kochi he travelled by a domestic flight and from Kochi he was proceeding to Malappuram in an Ambassador car. The car in which the first respondent and others were travelling was intercepted by the Superintendent, RCP Malappuram and conducted a search of the person and baggage. In the written statement filed under Section 313 Cr. P.C., the first respondent had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en the trial of the case started and so he could not be examined. The learned Sessions Judge found that the evidence adduced in this case proves beyond any reasonable doubt that four gold biscuits were seized from the possession of the first respondent. The evidence adduced by the complainant clearly establishes that these four gold biscuits were found concealed inside the Radio Cassette Recorder. The first respondent had given a statement before the customs officials admitting that it was of foreign origin. The fact that he filed Ext. Dl statement retracting from the statement given under Section 108 of the Customs Act is not sufficient to hold that the earlier statement was given under coercion. The first respondent had not adduced any ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and concealed inside a Radio Cassette Recorder. Further, the first respondent himself gave a statement admitting that the gold biscuits were of foreign origin. Though he retracted subsequently, it cannot be said that the belief of the officer that it was smuggled one cannot be said to be without any basis. So, the burden had shifted to the accused to establish that the gold seized from his possession was not of foreign origin. He did not adduce any evidence to discharge that burden. So, finding of the learned Sessions Judge that the prosecution failed to establish that the gold seized was of foreign origin is illegal and liable to be set aside. I set aside the same and found that the prosecution has successfully discharged its burden in es ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore the Court is that some gold of foreign origin were seized from the possession of the first respondent. The value of the gold was not ascertained. So the conviction of the first respondent under Section 135(1)(i) of the Customs Act is unsustainable. He can be convicted only under Section 135(1)(ii) of the Act. I find that the prosecution has succeeded in establishing that the first respondent committed an offence punishable under Section 135(1)(ii) of the Customs Act. Since he is already questioned by the learned Magistrate, there is no need to question him again. In the result, the Crl. Appeal No. 916 of 1995 and Crl. R.C. No. 2 of 1996 are allowed in part. The first respondent is found guilty of the offence punishable under Section ..... X X X X Extracts X X X X X X X X Extracts X X X X
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