TMI Blog1980 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... nces. Having regard to the totality of the situation, there is no reason why the prosecution would not be entitled to call into aid the combined effect of the presumptions under Sections 106 and 114 of the Evidence Act. We are, therefore, satisfied that the prosecution has clearly proved the charge under Section 135(b)(ii) of the Customs Act. Appeal dismissed. - 47 of 1974 - - - Dated:- 6-2-1980 - S. Murtaza Fazal Ali and A.D. Koshal. JJ. [Judgment per : Fazal Ali J.]. - This appeal by special leave is directed against a judgment dated August 18, 1973 of the Andhra Pradesh High Court. The facts of the case have been detailed in the judgment of the High Court and it is not necessary to repeat them all over again. The appellant was tried by the Magistrate for offences under Section 135(b)(ii) of the Customs Act, 1962 and Section 85(ii) read with Section 8(i) of the Gold Control Act, 1968 and sentenced or rigorous imprisonment for nine months under each count. Both the sentences were directed to run concurrently. Sentences of fine were also imposed. The Sessions Judge, on appeal, set aside the conviction and sentence under the Gold Control Act and acquitted the appellant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have already mentioned that the prosecution and conviction under the Gold Control Act was set aside for lack of proper sanction. It is also admitted by the prosecution in the instant case that as no seizure was made in accordance with the provisions of the Customs Act, the presumption under Section 123 thereof was not available to the prosecution. 3. Section 135(1)(b), under which the appellant has been convicted, runs thus : - "135. (1) Without prejudice to any action that may be taken under this Act, if any person *** (b) Acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in may other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111." 4. Analysing the essential ingredients of clause (b), it is manifest that before a conviction can be recorded under it, the prosecution must prove that the accused has acquired possession of or is in may way concerned in depositing, keeping etc., any goods which he knows or has reason to believe are liable to confiscation under Section 111. Thus, in the instant case, as no presumption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was found to be guilty of an offence under the Prohibition Act and the only evidence to prove his guilt was that he was smelling of alcohol. This Court held that it was for the prosecution to prove the contravention of the provisions of the Prohibition Act and to prove further that particular intoxicant which was a liquor under the Act, was consumed by the accused and merely because the accused knew what he had taken (which was a matter within his knowledge) could not relieve the prosecution of the burden of proving that the liquor consumed was an intoxicant as defined under the Act. It is, therefore, clear that the observations made by this Court regarding the interpretation of Section 106 of the Evidence Act would not apply to the facts of the present case. In the case of Issardas Daulat Ram v. The Union of India, (1962) Supp. (1) SCR 358, this Court, after discussing the admitted circumstances of the case, found that the relevant pieces of evidence would prove the guilty knowledge of the accused. That was a case which arose under Section 178A of the Sea Customs Act and this Court observed as follows :- "If the gold now in question had been imported earlier it would be extremel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ledge that the gold was smuggled. In this connection, this Court observed as follows :- "In our view, the High Court was right in its conclusion because the fact that none of the respondents claimed ownership over the said gold could not necessarily mean either that the gold was smuggled gold or that the respondents were in possession thereof with the knowledge that it was so. The fact that the gold has foreign marks stamped on it can only mean that the gold was foreign. But since such foreign gold used to be imported before the present restrictions were imposed on its importation, it could have been imported without any violation of law. Consequently, that fact alone would not establish either of the two ingredients of Section 167(81)." 7. The facts of this case are, however, clearly distinguishable from those of the present case. In the first place, in the case mentioned above, the accused was a bullion merchant and it was in the very nature of circumstances and as a part of his profession, natural for him to be in possession of gold. Secondly, the Court clearly held that during those days foreign gold used to be freely imported in our country and therefore the mere presence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence suggesting the inference that the goods were illicitly imported into India, was similar and reasonably pointed towards the conclusion drawn by the Collector.....The Collector had given the fullest opportunity to Bhooramal to establish the alleged acquisition of the goods in the normal course of business. In doing so, he was not throwing the burden of proving what the Department had to establish, on Bhooramal. He was simply giving him a fair opportunity of rebutting the first and the foremost presumption that arose out of the telltale circumstances in which the goods were found, regarding their being smuggled goods by disclosing facts within his special knowledge." It was also pointed out that the broad effect of the application of the basic principles underlying Section 106 of the Evidence Act would be that the onus is discharged if the prosecution adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the existence of the facts sought to be proved. In the case of Lalchand Dhanpat Singh Jain v. The State of Maharsashtra, (1975) 2 SCR 907 = 1983 E.L.T. while this Court was again considering the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw a presumption against the accused from the fact that the articles concerned were concealed and had particular markings and special features and from the nature of the unsatisfactory explanation given by the accused. 10. While it is, therefore, true that in the instant case the seizure was not made under Section 111 of the Customs Act and the prosecution could not press into service the presumption arising from Section 123 of the Customs Act, that does not clinch the issue. It is proved that the appellant was in possession of gold with foreign markings which was found to be in the shape of biscuits or bars kept in a secret chamber of the safe, and that the accused admitted that the gold was brought form outside the country and was given to him by somebody whose identity he was not prepared to disclose. Thus, the appellant knew as to who was the person who had given him the gold and if he also knew, as he says, that the gold was smuggled, he must have known whether the person who delivered the gold to him brought it under a permit or without any permit because at the time of the occurrence the import of gold was banned excepting under special circumstances. Having regard to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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