TMI Blog2011 (4) TMI 1038X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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. - Criminal Appeal No. 1233 of 2004, - - - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 6 silver bars. The same were weighing 40.421 kgs, 38.586 kgs, 38.275 kgs, 39.258 kgs, and 39.939 kgs respectively. He seized the same also under a Mahazar. 3. During trial, P.W.1 has identified 42 gold bars seized from the house of the accused as M.O. 1 series. The paper baggage has been marked as M.O. 2. The silver bars seized were marked as M.Os.3 to 8. Exhibit P.2 is the Mahazar for the recovery of the same. P.W.4 and Mr. Jain Babulal signed the said Mahazars as witnesses. A copy of the said Mahazar was handed over to the accused. P.W.1 suspected that these articles had been imported into India without paying proper customs duty. Then P.W.1 seized two Inland letters from the house of accused which were marked as Exhibit P.4 series. Then he also recovered a copy of the lease deed (Exhibit P.5) dated 18-5-1992 showing that the accused was residing as a lessee in the said house. When the accused was questioned about the possession of silver bars he produced three receipts showing payment of customs duty. 4. The first baggage receipt is No. 15438, dated 5-3-1993 and the same is in the name of one Mr. K.Mohan. According to the said receipt, for 98 kilos of silver, a sum of Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the accused. As a matter of fact, according to P.W.1, weight of the silver bars mentioned in the receipts did not tally with the silver bars seized. Then he handed over the further investigation to his higher officials. 8. P.W.2 is an Officer who accompanied P.W.1 during the house search of the accused, he has also spoken to the said facts in a vivid fashion. P.W.3 is yet another officer who accompanied P.W.1 during the house search at the house of the accused and he has also vividly spoken about the house search and the recoveries. P.W.4 is the owner of the house where the accused was residing. During the relevant time, he was residing in the first floor of the building. He has deposed to the fact that he was a witness to the house search made by the Customs Authorities and the recoveries made from the house of the accused. P.W.5 is yet another officer who accompanied P.W.1 during house search. He has also deposed to the above facts in details. P.W.6 was a Vigilance Officer in Customs Department at Chennai. He has spoken to about the examination of one Mr. Gajapathy. The statement of Mr. Gajapathy (not examined) is Exhibit P.26. P.W.7 is an officer of the Customs Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old bars seized from the accused and the gold bars produced before the Court as material objects are one and the same. To put it otherwise, according to the trial Court, there is some discrepancy between the material objects produced before the Court and the material objects seized from the house of the accused. (ii) The next ground of acquittal is that the statement made by Mr. Samsudin Bin-Mohamed marked as Exhibit P.11 coupled with the statement of the accused to the Customs Authorities under Exhibit P.10 clearly exonerates the accused from the charges. (iii) The third ground is that Exhibit P.12 receipt has proved that all the 42 gold bars were brought only by Mr. Samsudin Bin-Mohamed by air from Singapore into India and the appropriate customs duty was paid. Therefore, according to the trial Court, the prosecution has failed to prove the case. 13. The learned Special Public Prosecutor would submit that all the above grounds stated by the trial Court are perverse. He would submit that absolutely there is no contradiction between the description of the gold bars in the seizure mahazar and the subsequent documents namely show cause notice, sanction order etc. During tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges framed by the trial Court are defective and the same has caused failure of justice to the accused. He would further submit that the sanction order is also defective inasmuch as it reflects total non-application of mind on the part of the sanctioning authority. He would also make a comment about the non-examination of the Commissioner who had given sanction order. The learned Senior Counsel would further submit that the offence under Section 135(1)(a) and 135(1)(b) of the Customs Act, will not go together in the given facts alleged by the prosecution. In so far as the charge under Section 135(1)(a) of the Act, is concerned, unless, it is alleged in the charge itself that the gold bars were imported by the accused without paying customs duty by evading the same. Thus, the charge itself is erroneous and therefore, the conviction of the accused for offence under Section 135(1)(a) of the Act, is not sustainable, he contended. 16. In so far as the charge under Section 135(1)(b) of the Act is concerned, it is the contention of the learned Senior Counsel that unless there is an allegation that the accused had knowledge that the material objects in question were not subjected to cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... act spoken to by the said witness is disputed, the said disputed question of fact should be adjudicated upon for which the Court may have to look into the other materials like Mahazars, show cause notice, sanction order, etc. 22. But in this case, since the fact that M.O.1 series were seized from the house of the accused by P.W.1 and other officials of Customs was not at all disputed, there is no occasion for this Court now to adjudicate upon all these aspects. 23. Then we have to look into the statement made by the accused under Section 313, Cr.P.C. For the first question relating to 42 gold bars and the seizure of the same from the house of the accused, the accused had no denial. Question No. 2 under Section 313, Cr.P.C., is in respect of the evidence of P.W.1 wherein he had stated that M.O.1 series 42 gold bars were seized from the house of the accused. When this evidence was brought his notice, the accused admitted the same. However, he has stated that he had receipts for the same. The third question is under Section 313, Cr.P.C., is more specific about M.O.1 series as well as the silver bars. In the same question, in respect of M.O.2, it has also been put to the accused ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that eh had no such mental state with respect to the act charged as an offence in that prosecution. Explanation. - In this section, culpable mental state includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability. 26. Therefore, in the case on hand, applying the said legal provision, it has to be presumed that the accused had knowledge of the fact that the gold and silver bars seized from his house were not subjected to customs duty. Of course the said presumption is rebuttable and it will not amount to conclusive proof. It is also the law that a rebuttable presumption can be rebutted either by letting positive evidence or by brining on record the materials during cross-examination or by producing the same as documentary evidence. Therefore, now we have to see whether the accused has discharged his burden of rebutting the said presumption. 27. The learned Senior Counsel would submit that Exhibit P.12 receipt clearly discharges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the accused and whether M.O.1 series available in the Court are the ones which he had imported. In the absence of examination of the said witness by the accused, in my considered opinion, the presumption under Section 114(g) of the Evidence Act, is to be necessarily drawn adversely against him. 30. A perusal of the judgment of the trial Court would go to show that the trial Court has relied on the statement made by Mr. Samsudin Bin-Mohamed under Exhibit P.11. When a specific query was made to the learned Senior Counsel as to whether such a statement is admissible in evidence in the absence of examination of the maker of the statement, the learned Senior Counsel fairly submitted that the same is not admissible in evidence. 31. The learned Special Public Prosecutor would also submit that the said statement is not admissible in evidence. For this purpose, I may refer to Section 138B of the Customs Act, which reads as follows :- 138B. Relevancy of statements under certain circumstances.- (1) A statement made and signed by a person before any Gazetted Officer of customs during the course of any inquiry or proceeding under this Act shall be relevant, for the purpose of proving, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missible in evidence since the bar contained in Section 25 of the Evidence Act, is not applicable. It is needless to point out that a confession made by the accused before the Customs Authorities under Section 108 of the Customs Act, can be made use of against the maker of the statement because Section 25 of the Evidence Act, will not be a bar since the Customs Officer is not a police officer. The learned Senior Counsel after going through Exhibit P.10 would submit that it is not the confession. Realising the difficulty in getting the said document admitted in evidence, the learned Senior Counsel nextly submitted that the said statement can be used as admission . For this, this Court brought to the notice of the learned Senior Counsel, Section 21 of the Evidence Act, which reads as follows :- 21. Proof of admissions against persons making them, and by or on their behalf. Admission are relevant and may be proved as against the person who makes them or his representative in interest; but they cannot be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases. (1) An admission may be proved by or on behalf of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , it is within his exclusive knowledge and within the exclusive knowledge of the persons who have stated to have handed over the articles to him. 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 namely Mr. Samsudin Bin-Mohamed, Mr. K. Mohan, Mr. Kumarasamy and Mr. Mathiyalagan. 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. 38. The trial Court has acquitted the accused on the above grounds which in my considered opinion is only perverse because the trial Court has overlooked the acceptable evidences and has relied on the evidences which are inadmissible in evidence. 39. Now coming to the next contention of the learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment does not deal with the question of grant of a valid order of sanction at all. As the learned Sessions Judge recorded a judgment of acquittal, the High Court while reversing the same was required to meet the reasonings given by the learned Sessions Judge. The same having not been done, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of this case, there shall be no order as to costs. 41. Therefore, in my considered opinion, 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. 42. Assuming for a moment that such defect in the sanction order will disturb the entire prosecution, let us now look into the sanction order. In this case, the sanction order runs to several pages which contains a detailed documentation of all the events including the house search, seizure, enquiry, statements recorded, Mahazar etc. A perusal of the sanction order would go to show that the said sanction order has been issued only on due application of mind. Further, there is no law that the sanctioning authority should be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the facts placed before the Court by way of evidence would go to show that the accused had committed offence under Section 135(1)(b) of the Customs Act alone. Therefore, I do not propose to deal with Section 135(1)(a) of the Customs Act. As far as Section 135(1)(b) of the Customs Act is concerned, it states that if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113 he may be punished. 46. There is no doubt in this case that the properties are liable for confiscation under Section 111 of the Customs Act, and as a matter of fact, this Court is informed that the properties were duly confiscated. There is no doubt that the accused was keeping the said goods. In respect of the culpable state of mind, the presumption under Section 138(1)(a) of the Customs Act, is to be raised and as I have already stated, the said presumption has not been rebutted by the accused. Therefore, in my considered opinion, the accused is liable to be punished under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uate reasons there can be lesser punishment. The learned Senior Counsel has relied on a judgment of the Hon ble Supreme Court in Inder v. State of Maharashtra (cited supra), wherein the Hon ble Supreme Court on having taken into consideration the time lapse of 10 years in the trial of the case, imposed only a fine of Rs. 30,000/- in lieu of sentence. 51. The learned Senior Counsel would nextly rely on the judgment of the Hon ble Supreme Court in Rohit Kumar Mehra v. Asstt. Collector, Customs, Ministry of Revenue, Amritsar [1994 SCC (Cri) 154] wherein, in paragraph No. 3, the Hon ble Supreme Court has held as follows :- 3. Having regard to the fact that more than a decade has passed since the date of the commission of the crime and he has not come for adverse notice since then and appears to have settled down in life and also having regard to the fact that the Gold (Control) Act has since been repealed, we think that a lenient view may not be out of place in the facts and circumstances of this case. We, therefore, order the substantive sentence to be that already undergone and increase the fine to Rs. 25,000 on each count. We direct that failing payment of fine he will suffer im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscated and thus, in that respect also, the respondent has incurred huge loss. 54. The learned Senior Counsel would submit that on considering the health ground that the respondent is a heart patient suffering from heart disease for about 18 years, his age and all the other attending circumstances, invoking the proviso to Section 135(1)(d)(i) of the Customs Act, the sentence may be imposed on the accused/respondent. He would further submit that the respondent was in jail for one week during investigation. The learned Senior Counsel would also submit that the respondent is prepared to pay a fine of Rs. 50,000/-. 55. The learned Special Public Prosecutor would however oppose the said plea of the learned Senior Counsel and he would submit that the offence is so heinous in nature and it is an attempt to destroy the very economy of the nation and therefore, the persons like the accused who involve in these kinds of crime are to be dealt with iron hands. 56. I have considered the above submissions. 57. In similar situations, having regard to the fact that the accused had been dragged to Court for more than 10 years which itself is a punishment to him, the Hon ble Supreme Court ha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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