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TMI Blog2005 (9) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the negative. However, on a thorough search of the vehicle, the officers could locate a cavity in the wiring box behind the meter board. They recovered four parcels, wrapped in newspaper and tied with rubber bands, from that cavity. Upon opening the parcels, they found 45 (25 + 20) gold bars of foreign origin in two of these parcels and Indian currency of Rs. 41,625/- (Rs. 24,750/ + Rs. 16,875/-) in the other two parcels. The above persons could not produce any document to prove licit acquisition of the gold. The gold bars, currency and vehicle were seized under a mahazar. Statements of the above three persons were recorded by the officers. Those statements were to the effect that the seized gold bars had been purchased from one Prakash Chand (Bangalore) as per the instructions of, and with the cash given by, Shri K. K. Saidalavi [Appellant in Appeal No. C/256/99] and was being transported to Madurai for delivery to one Shri Chettiar. It was also stated that similar deliveries of gold had been effected on behalf of Saidalavi to one Sh. Vilas Sait and one Sh. Sathish (both, of Madurai) earlier. The statements also showed that secret cavities were made in the jeep by its owner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2.50 lakhs to S/Shri K. Mohammed, C. Shamsudeen and P. Mohammed Ali on 18-3-1998 for purchase of gold and that the said cash belonged to Shri Nawas Sheriff and Shri Mohammed Ali, who were his (Saidalavi's) partners in the business of purchase and sale of imported gold. It was on the basis of the results of all these investigations that the subject show-cause notice was issued, which proposed confiscation of the seized items and imposition of penalties on the appellants, besides S/Shri Prakash Chand, Sajjan Jain and Vilas Sait. These proposals were contested by the noticees. 2. In adjudication of the above show cause notice, the Commissioner of Customs ordered absolute confiscation of the gold bars under Section 111(e) of the Customs Act, of the jeep under Section 115(2) of the Act, of the currencies under Section 121 of the Act and of all the packing materials under Section 119 of the Act. He also imposed penalties of Rs. 5.00 lakhs, Rs. 3.00 lakhs, Rs. 2.50 lakhs, and Rs. 2.50 lakhs on S/Shri Saidalavi, K. Mohammed, C. Shamsudeen and P. Mohammed Ali, respectively under Section 112 (b) of the Customs Act. Similar penalties were also imposed on S/Shri Prakash Chand and Sajjan Jain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... come Tax authorities, Id. Counsel submitted that nothing contained therein could be relied on to say that Shri Saidalavi had indulged in smuggling of the gold bars seized by the Customs. It was argued that a correct assessment of the evidence on record would show that the preponderance of evidence in this case consisted of the aforesaid documents and the statements made by S/Shri Prakash Chand and Sajjan Jain and the same was enough to hold that the 45 gold bars were shown to have been lawfully acquired by Shri Saidalavi. Hence, according to Id. Counsel, the seized gold was not liable to be confiscated at all and consequently neither the vehicle could be confiscated nor any penalty was imposable on any of the appellants. Ld. Senior Advocate also endeavoured to draw a parallel between the present case and the case of Samir Kumar Roy v. CC (Prev.) Calcutta - 2001 (135) E.L.T. 1036 (Tri. - Calcutta), wherein the Commissioner's order of absolute confiscation of 20 pieces of gold biscuits of foreign origin from a Maruti car belonging to the appellant [Samir Kumar Roy] was set aside by the Tribunal after holding that the burden cast on the appellant under Section 123 of the Customs Act h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The sales register maintained by the company for 20th March 1998 did not mention names of purchasers. Though Shri Saidalavi claimed that his name was spelt as "Syed Ali" in Arabic language, there was no evidence on record to substantiate this claim. Ld. SDR submitted that there were serious lacunae in the evidence adduced by Shri Saidalavi, which was not enough to discharge his burden of proof under Section 123 of the Customs Act. Ld. SDR contested the Counsel's legal proposition that a preponderance of evidence, as in a civil case, was enough for persons accused of having smuggled gold, to discharge the burden of proof in terms of Section 123. According to ld. SDR, the view taken by the Supreme Court in Sanjay Gandhi's case (supra) was not applicable to the facts of this case. She has also endeavoured to distinguish the case of Samir Kumar Roy (supra) from the case on hand. 5. We have given careful consideration to the submissions. At the outset, we shall address the legal issue raised by ld. Senior Advocate relying on the Apex Court's judgment in Sanjay Gandhi's case. The case against Shri Sanjay Gandhi, s/o Smt. Indira Gandhi, former Prime Minister of India, was that 150 spo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lt as, for example, the Prevention of Corruption Act, the accused is entitled to rebut that presumption by proving his defence by a balance of probabilities. He does not have to establish his case beyond a reasonable doubt. The same standard of proof as in a civil case applies to proof of incidental issues involved in a criminal trial like the cancellation of bail of an accused. The prosecution, therefore, can establish its case in an application for cancellation of bail by showing on a preponderance of probabilities that the accused has attempted to tamper or has tampered with its witnesses. Proving by the test of balance of probabilities that the accused has abused his liberty or that there is a reasonable apprehension that he will interfere with the course of justice is all that is necessary for the prosecution to do in order to succeed in an application for cancellation of bail". [Emphasis added] 6. It is not in dispute that Shri Saidalavi was required to rebut the presumption created under Section 123(1) of the Customs Act. Section 123 reads as under:- SECTION 123. Burden of proof in certain cases - [(1) Where any goods to which this Section applies are seized under this A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liability to prove that the goods were not concealed in the vehicle by them. 7. Ld. Senior Advocate has argued that, for discharging the above burden of proof, it was enough for the appellants to establish a preponderance of probabilities to show that the gold bars had been lawfully acquired by Shri Saidalavi and the same were lawfully being transported at the time when the conveyance was intercepted by the officers of Customs. In this connection, reliance has been placed on para 14 of the Supreme Court's judgment in Sanjay Gandhi's case (supra), the relevant part of which we have already extracted in this order. Their lordships held that, where the statute raised a presumption of guilt, the accused was entitled to rebut that presumption by proving his defence by a balance of probabilities. Section 123(1) of the Customs Act [which embodies an exception to the general rule of evidence : affirmanti non neganti incumbit probatio, meaning, the burden of proof is on him who affirms, not on him who denies] raised presumption of guilt against the appellants, smuggling being an activity with culpable mental state inherent therein. We shall now proceed to ascertain whether the balance of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ucher No. 5562. This register does not mention purchaser's names and hence this document is per se not proof of M/s. Navarathan Jewellers having sold 45 gold bars to any particular person. In the certificate dated 24-4-1998 issued to "WHOMSOEVER IT MAY CONCERN" by M/s. Navarathan Jewellers, it is seen certified that, out of the gold bars purchased from M/s. MMTC, a quantity of 45 gold bars were sold under a valid bill to one Shri Syed Ali through one Shri Prakash Chand. This certificate also indicates that it was issued at the request of Mr. Syed Ali. The certificate was purportedly issued by the authorized signatory of M/s. Navarathan Jewellers (P) Ltd. Shri Saidalavi, who wants to rely on this document, has not disclosed the name of the authorized signatory who issued the certificate to him on behalf of M/s. Navarathan Jewellers. Above all, the name of the purchaser mentioned in Cash Bill No. 5562 dated 20-3-1998 and the certificate dated 24-4-1998 is "Syed Ali" and not "Saidalavi". Though Shri Saidalavi claimed that, in Arabic language, his name was spelt as Syed Ali, he did not prove this claim, nor did any of the other appellants, all of them Muslims, mention the name 'Syed Al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... i failed to rebut this evidence adduced by his own men. 11. In the aforesaid circumstances, it is our considered view that the balance of probabilities in this case is against Shri Saidalavi and it cannot be said that he succeeded in discharging his burden of proof under Section 123(1) of the Customs Act even in terms .of the decision rendered by the apex Court in Sanjay Gandhi's case. Consequently, the gold bars in question were "smuggled" in terms of Section 2(39) and hence liable to confiscation under Section lll(e) of the Customs Act, and, consequently Shri Saidalavi and his men were liable to be penalized under Section 112(b) of the Act. The vehicle used for the smuggling was liable to confiscation under Section 115(2). 12. We have also considered the Tribunal's decision in Samir Kumar Roy (supra) cited by Id. Senior Advocate. In that case, gold biscuits were found concealed underneath front seat of the Maruti car belonging to the appellant. On 16-10-1995 the appellant claimed ownership of the goods. He gave a self-incriminating statement on interrogation by officers of Customs. But, in his bail application before the Calcutta High Court, he claimed that he had purchased t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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