TMI Blog1974 (12) TMI 40X X X X Extracts X X X X X X X X Extracts X X X X ..... :- 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 Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hi. It appears that the manner in which he was trying to enter the second class compartment and his nervousness on being questioned by a Railway C.I.D. Police Officer, although the appellant had a ticket on him, aroused suspicion so that the appellant was detained. On a search of his person at the Police Station in the presence of Panchas, nine bars of gold with foreign markings were found secreted in especially made concealed pockets of his trousers. These were seized by the Railway Police. After further questioning by the Police, the appellant was summoned before Shri L.A. Digama, Additional Chief Inspector of Customs. Bombay, where his statement under Section 108 of the Customs Act, 1962 was recorded on 10-4-1967. In that statement, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion could fall in Section 111(d) which describes it as of any goods which are imported or, attempted to be imported or are brought within the Indian Customs waters for the purpose of being imported, contrary to any prohibition imposed by or under this Act or any other law for the time being in force . 5. It was urged that, as restrictions on the import of gold were only imposed in 1948, there should have been some evidence to show when it was brought into India. Apart from other reasons given below, we think that this argument overlooks that an offence under Section 1356(b) is punishable if the offender acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... esponding provisions of Sea Customs, Act, 1878, that the burden of proof was shifted on to the accused only when the goods were `seized' in the sense that they were taken out of the possession of an accused by the proper officer . That was also a case of seizure of allegedly smuggled gold. There, the police had initially commenced proceedings under Sections 411 and 414 of the Indian Penal Code against the accused, but, afterwards, the case was handed over to the Customs' authorities. The initial seizure being one by the ordinary police, it was held to be not one under the Act. In that case, this Court had set aside the order of the High Court because it held the statutory presumption could not be used to convict. But, it did no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en entrusted with so much gold by one Pannalal whose identity was not established and whose address was not revealed by the appellant. According to the appellant, Pannalal had just met him by chance. It is incredible that any person would entrust gold valued at about ₹ 40,000/- on which ₹ 17,000/- was payable as duty alone, to a youngster who was an utter stranger to him even if the carrier was to get ₹ 100/- for the risky undertaking. It is significant that the appellant was found carrying gold from Bombay, a port of entry for smuggled goods, to Delhi, where there is a good market for gold. If it was not recently smuggled gold carried contrary to law there was no need for the clandestine and guilty manner of transporting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written statement I have nothing more to say. I want to examine one witness from Chief Reservation Inspector, Western Railway, Bombay Central. The questions and answers which followed afterwards were : Q. Have you heard and followed the Mint Report read out and explained to you? Ans. Yes. Q. What have you to say about the same? Ans. I have to say nothing. I want to add that I am producing the notice given by the Custom dated 6-10-1967. 11. It is clear to us that the appellant was fully aware of the nature of the allegations made against him. He had not merely given a detailed explanation under Section 108 of the Act, of the circumstances in which he said he was arrested with the gold bars, but, he had also filed an el ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
