Decided on January 31,1986



S.Kalyanam, - (1.)THE appeals are directed against the Order of the Collector of Customs, Cochin, dated 1-2-1985 'and since a common order of adjudication has been passed by the Collector of Customs, Cochin relating to the provisions under the Customs Act, 1962 as well as Gold (Control) Act, 1968 and as the appellant is one and the same, the above appeals are consolidated and taken together and disposed of by a common order.
(2.)On 25-7-1983, the Inspector of Special Customs Preventive Unit, Calicut and party checked Bus No. MFF 523 of the Karnataka State Transport Corporation plying between Bangalore and Ernakulam at the bus stand at Calicut. The appellant, an occupant of the bus was examined by the authorities and a search of the appellant resulted in the recovery of two gold slabs kept in the pant pocket. Since the appellant is neither a certified goldsmith nor a licensed gold dealer and since there was no valid permit or document for the possession of the said primary gold bar by the appellant, the gold was seized by the authorities under Mahazar attested by witnesses as per law. The gold was assayed by a certified goldsmith who declared the purity of the same as 24 carat. The appellant gave a statement before the authorities on 27-7-1983 that he purchased 11 gold biscuits of foreign origin from two or three persons not known to him and that he got the biscuits melted into two slabs and got a portion of one of the two slabs and sold it in his native place and was taking the remaining gold to Trichur for sale. It is in these circumstances, proceedings were instituted against the appellant which ultimately resulted in the impugned order, now appealed against.
For purposes of convenience, let me first take up the appeal relating to charge against the appellant under the provisions of Customs Act, 1962.

(3.)THE learned counsel, Shri Chanderkumar, submitted that the gold will be liable for confiscation under the provisions of the Customs Act, 1962, hereinafter referred to as the Act, only if the authorities find there is evidence to establish that the gold under seizure is of foreign origin. It is only in such a situation that the presumption under Section 123 of the Customs Act, 1962, would be available to the Department and in the absence of any evidence to show that the gold under seizure is of foreign origin, the impugned order is not legally sustainable. THE learned counsel assailed the inculpatory statement recorded by the authorities from the appellant on 27-7-1933 on the ground that the same is neither true nor voluntary and was brought into existence, after he is kept in a state of prolonged custody from the date of seizure, namely 25-7-1983 to 27-7-1983. If the statement of the appellant is eschewed out of consideration, the learned counsel urged that there is no other evidence on record to prove that the gold under seizure is of foreign origin. THE learned Departmental Representative submitted that the case of the Department rests on the inculpatory statement of the appellant dated 27-7-1983 to prove the charge levelled against the appellant under the Customs Act. THE learned D.R. urged hat merely because there was a time interm of two days, that would not invalidate the statement under law.

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