TMI Blog1962 (6) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... tence to run consecutively. The prosecution case was as follows : - 2.The ship, M.V. Rutheverett, belonging to Everett Orient Line carrying goods between Japan and Far Eastern ports and India, arrived from Japan via Hong Kong, Bangkok, Singapore, Penang, Rangoon and Chittagong to Calcutta on 26th July 1960. 20 bars of gold were recovered from the person of a crew of the ship named Eddie Vestil on the 26th or 27th July 1960. Thereupon the Customs Department made a thorough search of the ship through its Rummaging Inspectors, the search continuing until nearly the end of September 1960. Altogether 2065 gold bars, most of them weighing 16 tolas each, were found concealed in various places in the ship, the total value of the gold bars being o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in the cabin of appellant Enrique Sanao in the above manner. According to the prosecution case, the other appellant, Obispo Reyes who was the Second Engineer of the ship, had joint control over the gold bars and was interested in the same along with the Apprentice Engineer. 3.The accused both pleaded not guilty. The learned Presidency Magistrate rejected the defence case and found that the accused were guilty. 4.So far as appellant Obispo Reyes, the Second Engineer, is concerned, the evidence against him consists of two items. Firstly, there is the evidence of P.W. 11, Malasio Zulueta, one of the crew of the ship, that when the ship was berthed at Hong Kong on 12th June 1960, the appellant Obispo Reyes, the Second Engineer, had invit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f conspiracy, Section 10 of the Evidence Act does not come into operation and, in the circumstances, the contents of the letters, Exhibit 13 series cannot really be treated as evidence against the appellant in whose possession they were found. The circumstance that the letters were found in his possession might lead to the difference that the appellant himself was aware of the contents of the letters, but the contents be used against him as his admission. 7.In the circumstances, it must be held that although there is strong suspicion against this appellant, there is nothing to show definitely that he was concerned with bringing into India 720 gold bars which were found concealed in the Apprentice Engineer's cabin. Both the charge against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... said that the charges were legally proved against him. 9.The learned Magistrate relied on the presumption which might drawn from Section 178A of the Sea Customs Act. That section, however only provides that when gold bars or such other articles believed to be smuggled are seized from the possession of any person, the burden is on that person to prove that the gold bars or other articles are not smuggled. But it is for the prosecution to prove that the gold bars were in the possession, that is conscious possession, of a particular accused. Until that is established, the presumption under Section 178A cannot be drawn against him. In the present case, as already indicated, the evidence adduced by the prosecution does not lead necessarily to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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