Assistant Commissioner, Central Excise and Customs, Thrissur Division, Thrissur v. Rajendra Prabhu

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 28TH DAY OF FEBRUARY 2018 / 9TH PHALGUNA, 1939** **CRL.A.No. 1713 of 2004** **--------------------------** **AGAINST THE JUDGMENT IN CC 13/1996 of ADDL.CHIEF JUDICIAL MAGISTRATE(ECONOMIC OFFENCES),ERNAKULAM DATED 12-03-2004** **AGAINST THE ORDER IN Crl.L.P. 558/2004 of HIGH COURT OF KERALA DATED 27-09-2004** **APPELLANT/COMPLAINANT:** **----------------------** **THE ASSISTANT COMMISSIONER, CENTRAL EXCISE AND CUSTOMS, THRISSUR DIVISION,, THRISSUR - 680 001.** **BY ADVS.SRI.JOHN VARGHESE, ASSISTANT SG SRI.C.P.UDAYABHANU SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SMT.PREETHA S. NAIR, SC** **RESPONDENT/ACCUSED:** **-------------------** **RAJENDRA PRABHU, S/O. PATTABI S., 121, KARUPPA GOUNDAR STREET, COIMBATORE-641 001.** **BY ADVS. SRI.PHILIP T.VARGHESE SRI.THOMAS T.VARGHESE SMT.ACHU SUBHA ABRAHAM SMT.V.T.LITHA SMT.T.M.BINITHA SMT.DIVYA KRISHNAN** **THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **rk** ## **K.P.JYOTHINDRANATH, J.** ## **--------------------------------Crl.Appeal No. 1713 OF 2004** ## **--------------------------------------** Dated this the 28[th] day of February, 2018 ## **JUDGMENT** This appeal is against the judgment of acquittal passed by the trial court in C.C.No.13/1996 on the files of Additional Chief Judicial Magistrate (Economic offences) Court, Ernakulam. 2. The facts necessary for disposal of this appeal is as follows: On 22.10.1994, the Circle Inspector of Police, Chalakudy was conducting vehicle checking at Potta Ashramam area and the respondent herein was found in possession of 30 gold bars weighing 3495 gms allegedly with foreign markings. He was arrested, as it was having foreign markings and on suspicion that there was violation of the provisions of the Customs Act, he was produced before the Superintendent, Special Customs Preventive Unit, **Crl.Appeal No. 1713 OF 2004** **2** Kodungalloor. The said contraband was seized as per Ext.P2, seizure mahazar. An enquiry was conducted and the alleged contraband was confiscated as per Ext.P6 order by the Commissioner of Central Excise and Customs, Kochi. Apart from the confiscation, a criminal prosecution was also initiated and a complaint was filed by the Assistant Commissioner of Central Excise and Customs, Thrissur against the respondent herein for an offence punishable under Section 135 of the Customs Act. The prosecution altogether examined five witnesses and Exts.P1 to P7 marked. On the side of the defence, Exts. D1 to D3 also marked. After appreciating the evidence, the court below acquitted the accused. The said acquittal order is under challenge in this appeal. 3. When the appeal came up for hearing, the learned Counsel appearing for the appellant/customs, submitted before this Court that there was an earlier proceedings under Section 111 of the Customs Act, 1962, that the above **Crl.Appeal No. 1713 OF 2004 3** referred 30 gold biscuits were confiscated by the Customs Commissioner and penalty imposed. The said order was challenged before the tribunal and was modified. Thereafter, a writ petition was filed before the Hon'ble High Court of Kerala, which was a reported decision, _**Rajendra Prabhu vs. Union of India 1999(1) KLT 402.**_ By the said judgment, Ext.P6 was set aside and directed the Commissioner to return 30 gold biscuits to the respondent herein. It was taken up before the Hon'ble Supreme Court by filing Civil Appeal No. 3077/1999. By the judgment dated 21.03.2001, the judgment of High Court of Kerala was reversed and was set aside and the submission was that, now the issue has been settled by the Hon'ble Apex Court by ordering confiscation of gold. Now, the burden is upon the appellant to show that he has not committed the offence as alleged under Section 135 of the Customs Act. Thus, what comes is that the finding of the court below has to be set aside. **Crl.Appeal No. 1713 OF 2004 4** 4. I heard the learned Counsel for the respondent. The learned Counsel submitted before this Court that the proceedings under Section 111 of the Customs Act and proceedings under Section 135 of the Customs Act are distinct and different. One is for confiscation and whereas the other one is to penalise by imposing sentence. In the case of a proceedings under Section 135 of the Customs Act, the Court is bound to look whether the evidence adduced will prove the offence beyond reasonable doubt. In this case, after considering the evidence before the trial court, the court came to a conclusion that the respondent is entitled for benefit of doubt. 5. It is submitted that, even if two views are possible and if the court took a view which will be favourable to the accused, in an appeal, even if the other view is also possible, the appellate court need not set aside the judgment. In a subsequent judgment, the confiscation of the gold biscuits might have been upheld by the Supreme Court. But, it is **Crl.Appeal No. 1713 OF 2004** **5** only a judgment relating to the confiscation. It has nothing to do with a criminal prosecution. The finding of the Apex Court cannot be imported to this case and unsettle the acquittal order. The apex court considered another set of materials for the purpose of confiscation alone. In the case of proceedings under Section 135, whether the respondent was having the mens-rea by which a sentence has to be imposed has to be considered. 6. In this case, the short point to be considered is that, whether the acquittal order is sustainable. Surely, when two views are available, one view was accepted by the trial court and acquitted the accused, the appellate court may not unsettle the same by saying that another view is also possible. The Hon'ble Apex Court said that the subject matter, ie, 30 gold biscuits are subject to confiscation, it can be said that, that issue has been finally decided by the Apex Court. It is binding upon all the Courts and the authorities in India. When there is such a finding, it can be only said that in **Crl.Appeal No. 1713 OF 2004 6** a prosecution under Section 135 of the Customs Act, the primary burden of the prosecution has been discharged as Section 135(I) (b) states as follows: _“(1) Without prejudice to any action that may be taken under this Act, if any person -_ _(a) xxxxxxx_ _(b) acquires possession of or is in any way concerned in carrying, removing, depositing, or harbouring, keeping, concealing, selling 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, as the case may be, or_ 7. In this case, the subject matter was found as liable for confiscation by the Judgment of the Hon'ble Apex Court in Civil Appeal No. 3077/1999. The respondent got no case that the contraband was not seized from him. Then, by virtue of Section 123, the burden is upon him. In this aspect, the learned Counsel got a case that, the burden as such will not be upon the appellant, as in a proceeding under Section 111 of the Customs Act. Surely, the burden upon the **Crl.Appeal No. 1713 OF 2004 7** respondent is not that as in a civil proceedings. 8. Thus, the impugned judgment of acquittal is hereby set aside and the matter is remanded back to the trial court to decide afresh after affording opportunity to the parties to adduce evidence, if any, they want to produce. With the above directions, this appeal allowed and the matter remanded back to trial court. Sd/- **K.P.JYOTHINDRANATH, JUDGE** //TRUE COPY// PA TO JUDGE rk/05.03.2018