Home Case Index All Cases Customs Customs + HC Customs - 2023 (2) TMI HC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2023 (2) TMI 552 - CALCUTTA HIGH COURTSmuggling - Gold Biscuits - yellow metals seized allegedly from the possession of the accused person were gold or not - burden to prove - Section 123 of the Customs Act - HELD THAT:- Section 123 of Customs Act, 1962 upon plain reading of it suggests that this provision is applicable in cases where seizure is made under the Customs Act, 1962. Since, admittedly no seizure was made following the provision of Section 102, in the humble opinion there is no scope to press Section 123 of the Customs Act, 1962 into service to draw such presumption. Learned Trial Court failed to consider this aspect of the matter - When the later general law is repugnancy or inconsistency, the later special law will prevail over the earlier general law. It has become settled principle of law that special law will prevail over and above the general legislation. The P.F.A. Act has extended certain rights to the accused person under Sections 11 and 13 of the P.F.A. Act. Launching of a prosecution under Sections 272 and 273 of the I.P.C., without following the procedure prescribed under this Special Act would amount to depriving an accused of his statutory right. The examination under Section 313 of the Code of Criminal Procedure does have the nexus with the defence, which the accused may decide to bring if necessary. It is the mandatory obligation of the Court to hold a fair trial. Lack of opportunity to explain his position vis-à-vis incriminating evidence, to be used against him is definitely prejudicial to the interest of accused person. Therefore, without giving an opportunity to the accused person to explain the incriminating evidence, Court could not have used the same against the accused person to record an order of conviction. The prosecution case cannot be said to have been proved beyond reasonable doubt. The impugned judgement passed by learned Appellate Court affirming the judgement passed by learned Chief Judicial Magistrate, Malda against the accused person suffers from infirmity and should be set aside - Appeal allowed.
|