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TMI Blog2009 (8) TMI 829X X X X Extracts X X X X X X X X Extracts X X X X ..... tion were confirmed by learned first Additional Sessions Judge, Ernakulam in Crl. Appeal No. 184 of 1997. 2. Facts of the case necessary for decision of the revision petition are: Petitioner was employed in Abu Dabi as a driver. On 23-12-1986 for the purpose of returning to his native place he came to the Airport at Thiruvananthapuram by Air India flight from Abu Dabi. On 29-12-1986 he went to the air cargo complex attached to the Airport at Thiruvananthapuram for collecting his unaccompanied air baggage. On examination of that baggage it was found by the authorities that in a plywood box, apart from the personal belongings, in concealed cells 67 gold biscuits were kept. Petitioner was arrested at the spot. His statement was recorded under Sec. 108 of the Act. Based on the information given by petitioner, accused Nos. 2 and 3 were summoned and their statements were also recorded. It is accordingly that accused Nos. 2 and 3 were also implicated in the case. It is contended by learned counsel that presumption under Sec. 138A of the Act has successfully been rebutted by petitioner by adducing evidence and bringing out circumstances from the evidence of prosecution witnesses. Lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohammed Ali, accused No. 2. Mohammed Ali asked petitioner what all things petitioner intended to take with him. Petitioner stated that he has no money with him for payment of duty and hence he is taking only his personal belongings like cloths, radio, kettle, etc. Then Mohammed Ali asked him whether he could take with him a telephone and other articles belonging to him also and offered to pay the entire air cargo charge. Petitioner agreed to the same. Accordingly as instructed by Mohammed Ali, petitioner handed over his personal belongings (cloths, radio, kettle, etc.) in a Dunhil carton box to the said Mohammed Ali. Mohammed Ali offered to take the same with his own articles and send by air cargo. On 23-12-1986 petitioner left Abu Dabi and reached Airport at Thiruvananthapuram by 6.00 a.m. the following day. On 24-12-1986 he reached his native place at Irinjalakuda. On 26-12-1986 Aboobacker (accused No. 3) came to his house and told him that Mohammed also has reached his native place, the unaccompanied baggage sent in the name of petitioner has reached cargo complex at Thiruvananthapuram Airport and Mohammed Ali wanted petitioner to go there and collect it. Accordingly petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealed that petitioner was in possession of the contraband which admittedly was not declared in the declaration given by petitioner and for which no duty also was paid. Courts below relied on the presumption under Section 138A of the Act. It was also observed that contention of petitioner that he was unaware of concealment of gold biscuits in the plywood box cannot stand since the very fact that petitioner had carried with him telephone numbers of some political leaders indicated that he expected some trouble at the cargo complex. Courts below therefore did not accept the explanation of petitioner. 6. No doubt, Section 138A of the Act provides for a presumption regarding possession. In the decision relied on by learned counsel (Asst. Collector v. Pavunni) referring to presumption under Section 138A of the Act it was held that if goods are found in the premises belonging to or in the possession of the person concerned there cannot be presumption that he is in possession of the goods knowingly or intentionally. The Supreme Court has held in Madan Lal v. State of H.P. (2003) SCC (Cri.) 1664 regarding presumption under the Narcotic Drugs and Psychotropic Substances Act that once p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose. Therefore that Mohammed Ali had the lead role in the matter is not disputed and is on record. 8. Even as per the evidence of prosecution, the gold biscuits were valued at Rs. 18,65,280/-. On going through the evidence I am not inclined to think that petitioner would have had any role in its purchase, for, his salary stated in Ext.P6 which is not shown to be incorrect was only Rs. 2,000/- and he was finding it difficult for paying duty for his personal belongings which required him to think of sending his personal belongings by unaccompanied baggage. It is also revealed from the evidence of D.W.1 and Exts.D1 and D2 that he had been to Abu Dabi and was there during 2-8-1986 to 27-10-1986. Petitioner has got a case that though involvement of D.W. 1 was disclosed by him, authorities did not take action against D.W. 1 under pressure. True, officials of the customs department examined in the case denied that. But they stated that D.W 1 was questioned with reference to the matter. 9. One circumstance which the courts below took into consideration to hold that petitioner had conscious possession of the contraband is that he was carrying telephone number of some political ..... X X X X Extracts X X X X X X X X Extracts X X X X
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