- (1.)THIS is a revision application by one Manka son of Kewal Ram resident of village Lilma District Barmer who has been convicted under Section 167 (81) of the Sea Customs Act in respect of 69 Tolas 9 Mashas gold which was seized from: his possession and sentenced to undergo rigorous imprisonment for eight months.
(2.)IT is not disputed that on 6-12-56 the applicant boarded a train bound for Barmer at Lilma Railway Station in the Indian territory near the Indo-Pakistan border. He was arrested at Banner by Bhanwar Lal (P. W. 1) Inspector Land Customs who was heading a Customs Escort Party on this (train and was taken before the Deputy Superintendent of Land Customs Barmer Shri R. C. Jindal (P. W. 3 ). Upon a search 7 bars of gold were recovered from his person-5 from the pockets on his waist-coat and 2 from the anti of his Dhoti. All the seven bars were marked No. 999 and they weighed 69 tolas 9 Mashas. This gold was seized under Section 178 of the Sea Customs Act. The applicant was prosecuted under Section 167 (81) of the Sea Customs Act read with Section 23 of the Foreign Exchange Regulation Act for a contravention of Notification No. 12 (11) F. 1/51 dated 27-2 51 issued under Section 8 (1) of the Foreign Exchange Regulation Act prohibiting the import of gold except with the permission of the Reserve Bank and On payment of the prescribed fee. He was convicted of this offence and was sentenced to rigorous imprisonment for 8 months and to pay a fine of Rs. 300/-by First Class Magistrate Barmer. On appeal the conviction and sentence of rigorous imprisonment for 8 months were confirmed by the Sessions Judge Balotra. The sentence of fine was set aside. The applicant was also prosecuted under Section 23 of the Foreign Exchange Regulation Act for importing gold in contravention to Section 8 (1) but was acquitted of this charge by the learned Magistrate.
(3.)THE conviction of the applicant was challenged before me on a large number of grounds. The main grounds are that the essential ingredients of offences were not made out, that Section 178a of the Sea Customs Act which had been called in aid by the lower courts to sustain the conviction was unconstitutional, that the presumption raised under it was not available for fastening criminal liability on any one, that in any case no presumption could be raised in the present case as the essential pre-requisite for raising it, namely, the subjective belief of the Customs Officer before seizure that the gold was smuggled one was lacking that the trial was defective inasmuch as the essential ingredients constituting the offence were neither embodied in the charge nor put to the accused in his examination under Section 342 Cri. P. C. that important circumstances on which the prosecution relied for the proof of the offence were not put to him in his examination and be had no opportunity of meeting them, and that inadmissible evidence bad been admitted and relied upon for convicting the applicant.
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