Judgment

BEG, J.:- The appellant aged 23 was arrested on 9-4-1967 by the Railway Police at the Bombay Central Railway Station as he was hurriedly trying to get into a second class compartment of the Frontier Mail bound for Delhi. 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 Sec. 108 of the Customs Act, 1962 was recorded on 10-4-1967. In that statement. the appellant admitted the recovery of gold bars from his person and stated that he had agreed with one Pannalal to carry them for delivery at Delhi for a sum of Rs. 100/- to be said to the appellant. He stated that, from what Pannalal had told him and also from the weight of the bars, he knew that he was carrying gold. He stated that his father was also with him, but, as nothing incriminating was recovered from the father, he was allowed to go away. He also admitted that he knew that transporting of gold like this was a criminal offence.

2. The appellant was prosecuted and convicted by the Presidency Magistrate of Bombay under Section 135 (b) of the Customs Act of 1962 (hereinafter referred to as the Act ) and sentenced to three months rigorous imprisonment. Charges under the Defence of India Rules were also preferred against him but he was acquitted of these. The High Court of Bombay, after carefully re-examining the whole evidence in the case. had affirmed the conviction and sentence of the appellant: but. the appellant had obtained special leave to appeal to this Court.

3. Learned Counsel for the appellant had urged before us that the conviction of the appellant is vitiated on three grounds.

4. Firstly, it is urged that there was no evidence whatsoever to hold that the gold seized from the person of the appellant was "liable to confiscation" as contemplated by Section 111 of the Act. It is contended that the only category in which the gold under consideration 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 135 (b) is punishable if the offender "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".

6. Secondly, it is contended that the High Court had wrongly used Section 123 of the Act so as to wrongly place the burden of proof on the appellant when this provision did not apply. This Section reads as follows:

"(l) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be

(a) in a case where such seizure is made from the possession of any person-

(i) on the person from whose possession the goods were seized : and

(ii) if any person, other than the person from whose possession the goods were seized claims to be the owner