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1974 (12) TMI 40 - SC - CustomsWhether there was no evidence whatsoever to hold that the gold seized from the person to the appellant was "liable to confiscation" as contemplated by Section 11 of the Act? Whether the High Court had wrongly used Section 123 of the Act so as to wrongly place the burden of proof on the appellant when this provision did not apply? Whether Section 342 of the Criminal Procedure Code had not been complied with inasmuch as only two very general questions were asked by the Trying Magistrate, followed by two others on one point? Held that:- No presumption under Section 123 of the Act could be used against the appellant. We do not think that the High Court or the Magistrate had used this presumption. We find that they had relied upon circumstantial evidence in the case to infer the character of the gold recovered and the accused's guilty knowledge. The appellant admitted in his statement under Section 108 of the Act, that transporting of these pieces of gold was an offence. If the gold had been legally imported before 1948 it could not be an offence to carry it. The appellant had not proved who Pannalal, the person who was alleged by him to have given him the gold to carry was. At least, the burden of proving an innocent receipt of gold lay upon the appellant under Section 106 of the Evidence Act. The totality of facts proved was enough in our opinion to raise a presumption under Section 114, Evidence Act that the gold had been illegally imported into the country so as to be covered by Section 111(d) of the Act. The appellant had not offered any other reasonable explanation of the manner in which it was being carried It is true that the general form of questions put does not strictly comply with the provisions of Section 342, Criminal Procedure Code. But, we are unable to hold that the appellant suffered any injustice for this reason. Indeed, he had not even raised such a question in the trial Court or before the High Court. If he had done so, the alleged defect could have been easily cured. The objection seems to us to be most technical and flimsy. The defect could not have possibly vitiated the conviction of the appellant. As the appellant and the fact that there is no previous conviction proved him, we consider it to be undesirable to send the appellant back to jail for a few days. We, therefore, reduce the sentence to the period already undergone. Subject to this modification, this appeal is dismissed
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