TMI Blog1994 (3) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... dra Reddy and N.P. Singh, JJ. [Judgment per : N.P. Singh, J.]. - The appellant was convicted by the Magistrate for an offence under Section 135(1)(a) of the Customs Act (hereinafter referred to as the `Act') and was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/-, in default of payment thereof, to undergo rigorous imprisonment for further period of six months. The appeal preferred on behalf of the appellant, before the Sessions Judge, was transferred to the High Court, to be heard along with the appeal filed on behalf of the State, against the order of acquittal, passed by the Magistrate against other co-accused persons. The High Court, by the impugned judgment, dismissed the appeal of the appellant. 2. It is the case of the prosecution that on 30-1-1969, the patrolling officials found a truck coming from the side of Moti Daman and proceeding towards Mohangam Railway Crossing, without the headlights being on in a suspicious manner. On inquiry, it was found that the said truck had unloaded some contraband articles at some Wadi. Police and the officials of the Customs Department, found out that goods had been unloaded at the Wadi of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... well ........" He again repeated the same thing later in his statement by saying :- "On date 30/31-1-1969 the Customs Officials digged the land near the well in the Wadi of my Iklora and found 101 Silver bars ......." He, however, stated that he did not know how the silver bars came there. In the case Veera Ibrahim v. State of Maharashtra, 1983 (13) E.L.T. 1590 (SC) = AIR 1976 SC 1167, it was examined, as to whether the statement of the accused in that case recorded by the Customs Officer under Section 108 of the Act before any complaint or first information had been lodged against him, can be used against such accused when he was charged for having committed an offence under Section 135(1)(a) of the Act. It was said that mere facts that at the relevant time the person was arrested on suspicion of having committed an offence under Section 124 of the Bombay Police Act and a panchnama had been prepared seizing the goods, were immaterial when neither the case was registered nor the F.I.R. was recorded by the police. It was pointed out that when the Customs Officer recorded the statement of the appellant, in that case he was not formally accused of any offence and as such the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or the time being imposed under this Act or any other law for the time being in force with respect to such goods; or ............." 7. According to appellant, the prosecution has not established that the silver ingots had been kept buried in connection with any fraudulent evasion or attempt at evasion of any duty chargeable thereon. In the case of Asstt. Collr. of Customs v. Babu Miya Sheikh Imam, 1983 (13) E.L.T. 1666 (SC) = AIR 1983 SC 974, it was pointed out that Section 135(1)(a) has to be read in three parts :- "1. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. 2. If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the Customs Act, 1962 with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. 3. If any person is in relation to any goods in any way knowingly concern ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delivered to the proper officer any intimation in respect of acquisition, of those silver ingots and the place where such silver ingots were proposed to be kept or stored after the acquisition. In this background, there should not be any difficulty in holding that the appellant was concerned in fraudulent evasion or attempt at evasion of the aforesaid prohibition under sub-section (2) of Section 11J in relation to specified goods. 9. In the facts and circumstances of the case, it can also be held that the appellant was concerned with the specified goods in connection with `fraudulent evasion or attempt at evasion' of duty chargeable on the specified goods. It is well known, that it is very difficult for the prosecution, to prove every link, in respect of the commission of the offence under the Act by direct evidence. The whole process of smuggling, for evading payment of customs duty consists of different links. The links aid and abet each other, sometimes through a remote control. That is why, the Parliament has introduced Section 138A in the Act. Section 138A says :- "138A. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which req ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause (a) or (b) of Section 135(1), can be established by circumstantial evidence as well. Even without applying Section 138A of the Act, it was held that 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 to raise a presumption under Section 114 of the Evidence Act, that the gold had been illegally imported into the country. It was further said that provisions of Section 135(1) had been designed to suppress smuggling, as such it has to be construed in accordance with the Mischief Rule first enunciated in Heydon's case [(1584) 76 ER 73)]. 11. According to us, the prosecution has established that the appellant was concerned in an attempt at evasion of duty under the provisions of the Act, as such committed the offence under first part of Section 135(1)(a) of the Act. He was also concerned in evasion of the prohibition imposed by sub-section (2) of Section 11J of the Act, by not having delivered to the proper officer, an intimation containing the particulars of the place, where the silver ingots, in such a huge quantity were to be kept and stored, as such he committed the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X
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