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2011 (4) TMI 1038 - HC - CustomsAcquittal - offences punishable under Section 135(1)(a)and 135(1)(b) of the Customs Act. - held that:- the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Customs Act, there bars to be a legal presumption of culpable mental state raised against the accused. Evidence - admission made by accused - section 21 and 31 of Evidence Act - held that:- admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions. From the above provision, it is made clear that the admission can be made use of only against the maker of the statement and the same cannot be used in his favour. Discharge of burden to prove - Section 106 of the Evidence Act - held that:- The said burden could have been discharged by the accused by examining himself as a witness before the Court. But, in view of Section 315, Cr.P.C., no adverse inference could be drawn against the accused for failure to examine himself as defence evidence. At the same time, the said burden could have been discharged by examining the other persons - When they have not been examined and there is no explanation offered before this Court for the same, I have to hold that the burden has not been discharged at all by the accused to prove that the gold bars and the silver bars were handed over to him by those persons after paying necessary customs duty. Simply because there is some delay in the sanction order, which is formal in nature, it cannot be held that the entire prosecution is vitiated. The judgment of the trial Court acquitting the respondent under Section 135(1)(b) of the Customs Act, is set aside and the respondent is convicted for offence under Section 135(1)(b) of the Customs Act and he is sentenced to imprisonment for the period already undergone and to pay a fine of ₹ 75,000/- (Rupees seventy-five thousand only) and in default to undergo rigorous imprisonment for six months. To this extent, the appeal stands allowed.
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