A voluntary statement recorded under Section 108 of the Customs Act, 1962, serves as substantive evidence, and in cases of smuggled gold, once the department establishes a reasonable belief, the burden shifts to the accused under Section 123 to prove the legality of possession.

DR. RACHNA GUPTA

Present appeal is filed to assail the order in original number 09/2024-25 dated 28.03.2024. The facts which culminated into the said adjudication are as follows: -

1.1 The team of officers Director of Revenue Intelligence [DRI] (acting upon an intelligence) intercepted the appellant namely Mahendra Kumar Thakker who was carrying one bag pack and one hand bag. On being inquired, he denied carrying any smuggled foreign origin gold either on his Person nor in his baggage.

1.2 He was served with the notice under section 102 of customs act 1962. In response there to the appellant agreed to be searched [in person and for his baggage] by the DRI officer however not at the railway station but in DRI office. During the consequent search in presence of the independent witness, the appellant was found wearing an off-white sleeveless jacket with many pockets in it under his blue colored shirt. From the said jacket 5 articles wrapped in newspaper were recovered which were found to be 4 yellow color metal bars and 3 yellow color metal biscuits. The total weight of the bars/biscuits was found to be of 4349.2 grams (4 metal bars weighing around 1kg each and 3 yellow metal biscuits weighing 160 grams each).

On being inquired further the appellant admitted the recovered metal to be gold and couldn't produce any document in respect of the said possession. Resultantly the DRI officers seized the recovered metal [bars and biscuits] on the reasonable belief that the same were liable for confiscation under customs act 1962. The further search of the person of the appellant resulted in recovery of Indian currency total amounting to rupees 1,08,000 (2 thousand × 38 and rupees 500 × 64) that too from the pockets of the above-mentioned sleeveless jacket. The appellant couldn’t explain the possession of said Indian currency also. Panchnama dated 15.09.2022 was drawn statement of appellant was recorded who stated himself to be into jewelry business having a jewelry shop in Patna. He with the help of Lucky (Calcutta), Deva and Nandu (Delhi) used to take delivery of gold from Calcutta to be delivered in Delhi. The recovered currency was mentioned to have been received by the appellant in Calcutta at instance of said Lucky. Accordingly follow up search was conducted in Patna in the shop of the appellant (M/s Patna Enamel Mart) Bansal kumar and Param kumar (nephew of Appellant) were found present. Their statements were also recorded, nephew of the appellant stated that his uncle Mahendra (appellant) is involved in buying and selling of smuggled gold for years. Subsequently the appellant was arrested. However, was later released on bail. He as well as Param kumar (nephew) filed applications before the jurisdictional court for the retraction of their statements. Search in the shop of Deva (M/s Prithvi Raj Jewelers,) Mahajani, Chandi Chowk Delhi) was also conducted.

1.3 The metal got examined by jewelry appraisal namely Shri Neeraj Wadwa who vide his appraisement report dated 29.09.2022 reported the recovered yellow metal (bars and biscuits) to be gold bars/biscuits collectively weighing 4350 grams having market value of rupees 2,17,19,632/-. The proceedings of appraisement were recorded in Panchnama dated 29.09.2022 which was conducted in the presence of two independent witnesses. The call detail records and the subscriber detail records of 2 mobile numbers with appellant (8210921338 and 8797936474) were also obtained from telecom operators. The noodle officer, M/s Vodafone Idea Limited vide (the letter dat