{"id":245676,"date":"1980-02-06T00:00:00","date_gmt":"1980-02-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shah-gumman-mal-vs-the-state-of-andhra-pradesh-on-6-february-1980"},"modified":"2016-01-13T08:46:48","modified_gmt":"2016-01-13T03:16:48","slug":"shah-gumman-mal-vs-the-state-of-andhra-pradesh-on-6-february-1980","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shah-gumman-mal-vs-the-state-of-andhra-pradesh-on-6-february-1980","title":{"rendered":"Shah Gumman Mal vs The State Of Andhra Pradesh on 6 February, 1980"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Shah Gumman Mal vs The State Of Andhra Pradesh on 6 February, 1980<\/div>\n
Equivalent citations: 1980 AIR 793, \t\t 1980 SCR (2)1005<\/div>\n
Author: S M Fazalali<\/div>\n
Bench: Fazalali, Syed Murtaza<\/div>\n
           PETITIONER:\nSHAH GUMMAN MAL\n\n\tVs.\n\nRESPONDENT:\nTHE STATE OF ANDHRA PRADESH\n\nDATE OF JUDGMENT06\/02\/1980\n\nBENCH:\nFAZALALI, SYED MURTAZA\nBENCH:\nFAZALALI, SYED MURTAZA\nKOSHAL, A.D.\n\nCITATION:\n 1980 AIR  793\t\t  1980 SCR  (2)1005\n 1980 SCC  (2) 262\n\n\nACT:\n     Customs Act  1962, Section\t 135(1)(b) &  Evidence\tAct,\n1872, Section  106 and\t114-Premises searched-Gold  biscuits\nwith  foreign\tmarkings  recovered-Accused  not  disclosing\nidentity of  person who\t gave  the  gold-Whether  court\t can\npresume that  the gold\twas smuggled  and  imported  without\npermit.\n\n\n\nHEADNOTE:\n     An offence\t under section 135(1)(b) of the Customs Act,\n1962 is\t punishable if\tthe offender, acquires possession of\nor is in any way concerned in carrying removing, depositing,\nharbouring, keeping, concealing, selling or purchasing or in\nany other  manner dealing  with any  goods which he knows or\nhas reason  to believe\tare  liable  to\t confiscation  under\nsection 111.\n     Section 111  enumerates the  categories of\t goods which\nare imported into India and are liable to confiscation.\n     The Central  Excise officials searched the house of the\nappellant and  found in\t a secret  chamber of  an iron safe,\nwhich was  opened by  him with the keys in his possession, a\nbundle containing  28 gold  biscuits and a half biscuit, all\nof which  bore foreign\tmarkings. In  another secret chamber\nwere found  gold earnings  in plastic  boxes and a bundle of\ncurrency notes.\t When questioned  in  the  presence  of\t the\nwitnesses he stated that he had been receiving gold biscuits\nfrom some  unknown person  from Bombay\tand that  the  other\narticles belonged to him and his mother. He admitted that he\nhad no\tgeneral or  special permit  from either\t the Reserve\nBank of India or the Gold Control Administrator to import or\nkeep foreign  gold.  The  statement  of\t the  appellant\t was\nrecorded.  Thereafter\tthe  appellant\twas  prosecuted\t for\noffences under\tSection 135(1)(b)(ii)  of the  Customs\tAct,\n1962 and  Section 85(ii)  read with Section 8(i) of the Gold\nControl Act, 1968.\n     The Magistrate convicted and sentenced the appellant to\nrigorous imprisonment  for nine\t months under each count. On\nappeal, the  Sessions Judge  set aside\tthe  conviction\t and\nsentence  under\t the  Gold  Control  Act  as  the  requisite\nsanction for  prosecution was  not accorded,  but maintained\nthe conviction and sentence under Section 135(i) (b) (ii) of\nthe Customs Act, which order was confirmed by the High Court\nin revision.\n     In appeal\tto this\t Court it was contended on behalf of\nthe appellant  : (1)  that if  the presumption under Section\n123 of\tthe Customs Act is not available to the prosecution,\nthen there  is no  legal evidence to show that the appellant\nhad any\t knowledge or  had any\treason to  believe that\t the\ngoods were imported or were smuggled without a lawful permit\nand (2)\t as the\t case had  been going  on for eight years, a\nlenient view on the question of sentence may be taken; while\non behalf  of the respondent-State it was submitted that the\nfact that  the gold  bore foreign markings and was recovered\nfrom the possession of the appellant who had admitted in his\nstatement before  the Customs  Officers\t that  some  unknown\nperson had given it to him,\n1006\nwould itself  raise a  sufficient presumption  to  attribute\nknowledge to  the  appellant  that  the\t gold  was  smuggled\nwithout any permit.\n     Dismissing the appeal,\n^\n     HELD :  (1) The  prosecution  has\tclearly\t proved\t the\ncharge under  Section  135(1)(b)(ii)  of  the  Customs\tAct.\n[1014D]\n     (2)  The\tsentence  being\t  one\tonly   of   rigorous\nimprisonment for  nine months,\tthere is  no  room  for\t any\nreduction thereof. [1014E]\n     (3)  The  fact  as\t to  how  the  appellant  came\tinto\npossession of  the gold\t and whether  it was imported or not\nbeing within  the special  knowledge of the appellant, if he\nfailed to  disclose the\t identity of the person who gave him\nthe gold, it was open to the Court to presume under sections\n106 and 114 of the Evidence Act that the appellant knew that\nthe gold in his possession was smuggled and imported without\na permit. [1010E-F]\n     (4) The  broad effect  of the  application of the basic\nprinciples underlying  section 106 of the Evidence Act would\nbe that\t the onus  is discharged  if the prosecution adduces\nonly so\t much evidence,\t circumstantial\t or  direct,  as  is\nsufficient to  raise a presumption in its favour with regard\nto the existence of facts sought to be proved. [1012F]\n     Issardas Daulat Ram & Ors. v. The Union of India & Ors.<\/a>\n[1962] Supp.  1 S.C.R.\t358;  Commissioner  of\tIncome\tTax,\nMadras v.  Messrs Best\t& Co.<\/a> [1966] 2 S.C.R. 480; Collector\nof Customs,  Madras &  Ors. v.\tD. Bhoormul<\/a>  [1974] 3 S.C.R.\n833; Labchand Dhanpat Singh Jain v. The State of Maharashtra<\/a>\n[1975] 2  S.C.R. 907;  Balumal Jamnadas\t Batra v.  State  of\nMaharashtra<\/a> [1976] 1 S.C.R. 539 referred to; Berham Khurshed\nPesikaka v.  State of  Bombay<\/a> [1955]  1 S.C.R. 613; State of\nPunjab v.  gian Chand & others Crl. A. 195\/62 disposed of on\nApril 2, 1968 distinguished.\n     In the  instant case  though the  seizure was  not made\nunder Section  111 of  the Customs  Act and  the  prosection\ncould not  press into  service the  presumption arising from\nsection 123  of the  Customs Act.  It  is  proved  that\t the\nappellant was  in  the\tpossession  of\tgold  biscuits\twith\nforeign markings  which were kept in a secret chamber of the\nsafe, and he admitted that the gold was brought from outside\nthe country  and given to him by somebody, whose identity he\nwas  not  prepared  to\tdisclose.  These  circumstances\t are\nsufficient to  raise a\tpresumption under Section 106 of the\nEvidence Act  so as  to attribute knowledge to the appellant\nthat the gold was smuggled. [1014B-D]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION :\t Criminal Appeal No.
\n47 of 1974.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  Order
\ndated 10-8-1973 of the Andhra Pradesh High Court in Criminal
\nRevision Case  No. 648\/72 and Criminal Revision Petition No.
\n992\/72.\n<\/p>\n
     Dr. Y. S. Chitale and Vineet Kumar for the Appellant.
\n     M. A.  Khader and\tVenkatarao  &  G.  N.  Rao  for\t the
\nRespondent.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     FAZAL ALI,\t J.-This appeal by special leave is directed
\nagainst a  judgment dated  August 18,  1973  of\t the  Andhra
\nPradesh High Court.\n<\/p>\n
1007<\/span><\/p>\n
The facts  of the case have been detailed in the judgment of
\nthe High  Court and  it is  not necessary to repeat them all
\nover again.  The appellant  was tried  by the Magistrate for
\noffences under\ts. 135(1)  (b) (ii) of the Customs Act, 1962
\nand s.85(ii)  read with s. 8(i) of the Gold Control Act, and
\nsentenced to  rigorous imprisonment  for nine  months  under
\neach  count.   Both  the  sentences  were  directed  to\t run
\nconcurrently. Sentences\t of  fine  were\t also  imposed.\t The
\nSessions Judge,\t on appeal,  set aside\tthe  conviction\t and
\nsentence under\tthe  Gold  Control  Act\t and  acquitted\t the
\nappellant of  that charge  for the reason that the requisite
\nsanction  for\this  prosecution   was\tnot   accorded,\t but
\nmaintained the\tconviction and\tsentence  of  the  appellant
\nunder s. 135 (1)(b) (ii) of the Customs Act. Thereafter, the
\nappellant went\tup in  revision\t to  the  High\tCourt  which
\nconfirmed the conviction and sentence upheld by the Sessions
\nJudge. Then  the appellant  moved this Court and this appeal
\nis by special leave.\n<\/p>\n
     The allegations  made  against  the  appellant  may  be
\nbriefly stated.\t On  16-4-1971\tP.W.  4,  Superintendent  of
\nCentral Excise\tissued a warrant (Ext. P-3) authorising P.W.
\n3 and  another Inspector  to proceed  to the  house  of\t the
\nappellant at  6.30 a.m.\t P. W.\t3  called  P.W.\t 1  and\t one
\nNihalchand as  mediators and  informed them that the accused
\nhad concealed  gold biscuits  of foreign origin in his house
\nand hence  it was  decided to  search his  house.  When\t the
\nsearch was  conducted, the  accused was\t directed to produce
\nthe gold  biscuits of  foreign origin in his possession. The
\naccused\t denied\t  that\the  possessed  any  but\t the  Excise
\nofficials searched  the house  and found in a secret chamber
\nof an  iron safe,  which was  opened by the accused with the
\nkeys in his possession, a bundle containing 28 gold biscuits
\nand a half biscuit marked as M. Os. 1-29. All these biscuits
\nbore foreign  markings. In another secret chamber were found
\ngold earrings  in plastic  boxes and  a bundle\tof  currency
\nnotes. The  accused was\t then questioned  in the presence of
\nthe witnesses  and he stated that he had been receiving gold
\nbiscuits from  some unknown  person from Bombay and that the
\nother articles\tbelonged to  him and  his mother.  On  being
\nquestioned further,  the accused  admitted that\t he  had  no
\ngeneral or  special permit from the Reserve Bank of India or
\nthe Gold  Control Administrator\t to import  or keep  foreign
\ngold. The  statement of\t the accused  was  recorded  and  is
\nmarked\tExt.   P4.  Before   launching\ta  prosecution,\t the
\nCollector of Central Excise issued a notice calling upon the
\nappellant  to  show  cause  why\t M.  Os.  1  to\t 51  be\t not
\nconfiscated  and   penalty  levied.  The  accused  gave\t his
\nexplanation, Ext.  P-7.\t Thereafter,  the  Collector  passed
\norders of adjudication confiscating the articles and imposed
\na penalty of Rs. 5,000\/. On appeal,
\n1008<\/span>
\nthe confiscation  of  jewellery\t and  cash  was\t set  aside.
\nSubsequently, PW 5, the Assistant Collector of Customs filed
\na complaint  for the  prosecution of the appellant under the
\nCustoms Act.  We have already mentioned that the prosecution
\nand conviction\tunder the Gold Control Act was set aside for
\nlack  of  proper  sanction.  It\t is  also  admitted  by\t the
\nprosecution in\tthe instant case that as no seizure was made
\nin accordance  with the\t provisions of\tthe Customs Act, the
\npresumption under  s. 123  thereof was\tnot available to the
\nprosecution.\n<\/p>\n
     Section 135(1)  (b), under which the appellant has been
\nconvicted, runs thus :-\n<\/p>\n
\t  “135(1) Without  prejudice to\t any action that may
\n     be taken under this Act, if any person-\n<\/p><\/blockquote>\n
\t  (b) acquires\tpossession  of\tor  is\tin  any\t way
\n     concerned\t in    carrying,    removing,\t depositing,
\n     harbouring, keeping,  concealing, selling or purchasing
\n     or in  any other manner dealing with any goods which he
\n     knows  or\t has  reason   to  believe   are  liable  to
\n     confiscation under section 111.”<\/p><\/blockquote>\n
     Analysing the  essential ingredients  of clause (b), it
\nis manifest  that before  a conviction can be recorded under
\nit, the prosecution must prove that the accused has acquired
\npossession of  or is  in any  way concerned  in\t depositing,
\nkeeping, etc.,\tany goods  which he  knows or  has reason to
\nbelieve are liable to confiscation under s. 111. Thus in the
\ninstant case,  as no presumption under s. 123 was available,
\nit was\tfor the\t prosecution to prove affirmatively that the
\nappellant was  in possession  of smuggled  gold knowing full
\nwell that  it was imported from outside the country so as to
\nfall within  the ambit of s. 111. Dr. Chitale, appearing for
\nthe appellant,\tcontended that\tif the\tpresumption under s.
\n123 is\tnot available  to the  prosecution, then there is no
\nlegal evidence\tto show that the appellant had any knowledge
\nor had any reason to believe that the goods were imported or
\nwere smuggled without a lawful permit. The counsel appearing
\nfor the\t State, however,  submitted that  the fact  that the
\ngold bore  foreign  markings  and  was\trecovered  from\t the
\npossession  of\t the  appellant\t who  had  admitted  in\t his
\nstatement before  the Customs  officers\t that  some  unknown
\nperson had  given it to him, would itself raise a sufficient
\npresumption to attribute knowledge to the appellant that the
\ngold was  smuggled without any permit. Although the question
\nraised by  the counsel\tfor the\t parties is  not  free\tfrom
\ndifficulty, an overall consideration of the special facts of
\nthe present  case would\t show that there could no difficulty
\nin holding that having regard to the admissions
\n1009<\/span>
\nmade by\t the appellant\tand his subsequent conduct, the onus
\nwould shift  to the  appellant to  show that  the gold found
\nfrom him  with foreign\tmarkings was  imported\twithout\t any
\npermit to his knowledge. This will be the combined effect of
\nthe provisions\tof ss.\t106 and 114 of the Evidence Act. The
\nmatter was  considered at great length in the case of Berham
\nKhurshed Pesikaka v. The State of Bombay<\/a>(1) where this Court
\nholding that s. 106 could not be construed to place the onus
\non the\taccused to  prove the  prosecution case, observed as
\nfollows :-\n<\/p>\n
\t  “Section  106\t  of  the  Evidence  Act  cannot  be
\n     construed to mean that the accused has by reason of the
\n     circumstance that\tthe facts  are especially within his
\n     own knowledge  to prove  that he  has not committed the
\n     offence. (See  Attygalle v.  The King-A.I.R.  1936 P.C.
\n     169, also\tIn re:\tKanakasabai  Pillai-A.\tI.  R.\t1940
\n     Madras 1).\t It is\tfor the prosecution to prove that he
\n     has committed the offence and that burden is not in any
\n     manner whatsoever\tdisplaced  by  section\t106  of\t the
\n     Evidence Act.”\n<\/p><\/blockquote>\n
These observations  were made  with respect  to the peculiar
\nfacts of  that case.  It appears  that what  had happened in
\nthat case  was that  the appellant was found to be guilty of
\nan offence  under the  Prohibition Act and the only evidence
\nto prove his guilt was that he was smelling of alcohol. This
\nCourt held  that it  was for  the prosecution  to prove\t the
\ncontravention of  the provisions  of the Prohibition Act and
\nto prove  further that\ta particular  intoxicant which was a
\nliquor under the Act, was consumed by the accused and merely
\nbecause the  accused knew  what he  had taken  (which was  a
\nmatter\twithin\t his  knowledge)   could  not\trelieve\t the
\nprosecution  of\t the  burden  of  proving  that\t the  liquor
\nconsumed was  an intoxicant as defined under the Act. It is,
\ntherefore, clear  that the  observations made  by this Court
\nregarding the  interpretation of  s. 106 of the Evidence Act
\nwould not  apply to  the facts\tof the\tpresent case. In the
\ncase of\t Issardas Daulat  Ram & Ors. v. The Union of India &
\nOrs.<\/a>(2)\t this\tCourt,\t after\t discussing   the   admitted
\ncircumstances of the case, found that the relevant pieces of
\nevidence would\tprove the  guilty knowledge  of the accused.
\nThat was  a case  which arose  under s.\t 178 (A)  of the Sea
\nCustoms Act and this Court observed as follows :-\n<\/p>\n
\t  “If the  gold now  in question  had been  imported
\n     earlier it\t would be extremely improbable that the gold
\n     would remain  in the  same shape  of bars\tand with the
\n     same fineness
\n1010<\/span>
\n     as when  imported after  the passage  of this length of
\n     time. It  was precisely  for this\treason that  at\t the
\n     stage of the enquiry before the Collector the principal
\n     point which  was urged  on behalf of the appellants was
\n     to deny  that the seized gold was of foreign origin and
\n     it is  the nature\tof the defence that accounts for the
\n     order of  the Collector  dealing almost wholly with the
\n     consideration of  that question.  In order to reach his
\n     finding about  the gold  being smuggled,  the Collector
\n     has referred  to the  conduct of  the appellants ……
\n     These were\t undoubtedly  relevant\tpieces\tof  evidence
\n     which bore\t on the\t question regarding the character of
\n     the gold,\twhether it  was licit  or  illicit.  Learned
\n     counsel is,  therefore, not  right\t in  his  submission
\n     regarding the  absence of material before the Collector
\n     to justify\t the finding recorded in paragraph 6 we have
\n     set out earlier.”<\/p><\/blockquote>\n
     The facts of the present case appear to us to be almost
\non all\tfours with  the facts  of the  case mentioned above.
\nHere, also,  the facts are that gold with foreign marking in
\nthe shape  of biscuits\twithout indicating  any\t change\t was
\nrecovered from\tthe possession\tof the\tappellant. Secondly,
\nthe appellant  admitted\t that  the  gold  was  brought\tfrom
\noutside the  country. The appellant further admitted that he
\ndid not\t hold any permit for importing the gold and the plea
\ntaken by  him was that some unknown person had delivered the
\ngold to\t him. In view of these circumstances and the fact as
\nto how\tthe accused  came into\tpossession of  the gold\t and
\nwhether it  was imported  or not  being within\tthe  special
\nknowledge of  the accused,  if he  failed  to  disclose\t the
\nidentity of  the person\t who gave  him the gold, then it was
\nopen to\t the Court  to presume\tunder ss. 106 and 114 of the
\nEvidence Act  that the\tappellant knew\tthat the gold in his
\npossession was smuggled and imported without permit.\n<\/p>\n
     In The  State of  Punjab v. Gian Chand & Ors. (Criminal
\nAppeal No.<\/a>  195 of  1962 disposed  of  on  2-4-1968),  while
\nexamining the  validity of  conviction and sentence under s.
\n167(81) of  the Sea  Customs Act, 1878, this Court held that
\nas the accused did not claim any ownership over the gold and
\nwas a  bullion merchant,  the mere  fact that  the gold\t had
\nforeign markings  would not  be sufficient to prove that the
\naccused had  knowledge that  the gold  was smuggled. In this
\nconnection, this Court observed as follows :-\n<\/p>\n
\t  “In our  view, the  High Court  was right  in\t its
\n     conclusion\t because   the\tfact   that  none   of\t the
\n     respondents claimed  ownership over the said gold could
\n     not necessarily  mean either that the gold was smuggled
\n     gold or that the respondents were
\n1011<\/span>
\n     in possession  thereof with  the knowledge\t that it was
\n     so. The fact that the gold has foreign marks stamped on
\n     it can  only mean\tthat the gold was foreign. But since
\n     such foreign  gold\t used  to  be  imported\t before\t the
\n     present restrictions  were imposed\t on its importation,
\n     it could  have been  imported without  any violation of
\n     law. Consequently,\t that fact alone would not establish
\n     either of the two ingredients of s. 167(81).”<\/p><\/blockquote>\n
     The  facts\t  of  this   case  are,\t  however,   clearly
\ndistinguishable from those of the present case. In the first
\nplace, in  the case  mentioned\tabove,\tthe  accused  was  a
\nbullion\t merchant   and\t it   was  in  the  very  nature  of
\ncircumstances and  as a\t part of his profession, natural for
\nhim to be in possession of gold. Secondly, the Court clearly
\nheld that  during those\t days foreign gold used to be freely
\nimported in  our country  and therefore the mere presence of
\nforeign\t markings   would  not\tbe  sufficient\tto  raise  a
\npresumption under  s. 106  of the  Evidence  Act  so  as  to
\nattribute  knowledge  to  the  accused\tthat  the  gold\t was
\nsmuggled. In the instant case, the facts are quite different
\nand so is the nature of the admission made by the appellant.\n<\/p>\n
     In a  later decision  of this  Court  in  the  case  of
\nCommissioner of\t Income Tax,  Madras v. Messrs Best & Co.<\/a>(1)
\nthis Court observed as follows |-\n<\/p>\n
\t  “When\t sufficient   evidence,\t either\t  direct  or
\n     circumstantial,  in   respect  of\tits  contention\t was
\n     disclosed by  the Revenue,\t adverse inference  could be
\n     drawn against  the assessee  if he failed to put before
\n     the Department  material which  was  in  his  exclusive
\n     possession. The  process is  described in\tthe  law  of
\n     evidence as  shifting of  the onus\t in the\t course of a
\n     proceeding from one party to the other.”\n<\/p><\/blockquote>\n
It is  true that  case arose  under the\t provisions  of\t the
\nincome Tax  Act but  the principles  laid down by this Court
\nwould apply equally to the facts of the present case. In the
\ncase  of   Collector  of   Customs,   Madras   &   Ors.\t  v.
\nD.Bhoormull<\/a>(2) a  case under the Customs Act, while dwelling
\non the\tnature and  purport of\tthe onus  which lay  on\t the
\nprosecution, this Court observed as follows:-\n<\/p>\n
\t  “It cannot  be disputed  that\t in  proceeding\t for
\n     imposing penalties\t under clause (8) of s. 167 to which
\n     s. 178-A does not apply, the burden of proving that the
\n     goods are smuggled goods, is on the Department. This is
\n     a fundamental
\n1012<\/span>
\n     rule relating  to\tproof  in  all\tcriminal  or  quasi-
\n     criminal  proceedings,  where  there  is  no  statutory
\n     provision to  the contrary.  But  in  appreciating\t its
\n     scope and\tthe nature  of the  onus cost by it, we must
\n     pay due  regard to\t other kindred\tprinciples, no\tless
\n     fundamental, of  universal application.  One of them is
\n     that the  prosecution or the Department is not required
\n     to prove  its case\t with mathematical  precision  to  a
\n     demonstrable degree……..  -All that  it requires  is
\n     the establishment\tof such a degree of probability that
\n     a prudent\tman  may,  on  its  basis,  believe  in\t the
\n     existence of  the fact  in issue,\tThus, legal proof is
\n     not necessarily perfect proof, often it is nothing more
\n     than a  prudent man’s  estimate as to the probabilities
\n     of the case.”\n<\/p><\/blockquote>\n
Similarly, while  dealing with\tthe merits of the case, this
\nCourt made the following observations :-\n<\/p>\n
\t  “In  the   case  before   us,\t the  circumstantial
\n     evidence suggesting  the inference\t that the goods were
\n     illicitly\timported   into\t India,\t  was  similar\t and
\n     reasonably pointed\t towards the conclusion drawn by the
\n     Collector………. The Collector had given the fullest
\n     opportunity  to  Bhoormull\t to  establish\tthe  alleged
\n     acquisition of  the  goods\t in  the  normal  course  of
\n     business. In  doing so,  he was not throwing the burden
\n     of proving\t what the  Department had  to establish,  on
\n     Bhoormull. He  was simply giving him a fair opportunity
\n     of rebutting  the first  and the  foremost\t presumption
\n     that arose\t out of the tell-tale circumstances in which
\n     the goods\twere found,  regarding their  being smuggled
\n     goods  by\t disclosing   facts   within   his   special
\n     knowledge.”\n<\/p><\/blockquote>\n
It was\talso pointed  out  that\t the  broad  effect  of\t the
\napplication of the basic principles underlying s. 106 of the
\nEvidence Act  would  be\t that  onus  is\t discharged  if\t the
\nprosecution adduces only so much evidence, circumstantial or
\ndirect, as  is sufficient  to raise  a\tpresumption  in\t its
\nfavour with  regard to\tthe existence of the facts sought to
\nbe proved. In the case of Labchand Dhanpat Singh Jain v. The
\nState of Maharashtra,<\/a> while this Court was again considering
\nthe extent  and application  of\t ss.  106  and\t114  of\t the
\nEvidence Act and in this connection, observed as follows:-\n<\/p>\n
\t  “Even if  we were  to apply the ratio decidendi of
\n     Gian Chand’s  case (supra)\t in the\t case before  us, we
\n     find that the
\n1013<\/span>
\n     result would  only be that no presumption under section
\n     123 of  the Act could be used against the appellant. We
\n     do not  think that the High Court or the Magistrate had
\n     used this\tpresumption. We\t find that  they had  relied
\n     upon circumstantial  evidence in  the case to infer the
\n     character of  the\tgold  recovered\t and  the  accused’s
\n     guilty  knowledge……….  A  reference\tto  Issardas
\n     Daulat Ram\t & Ors.\t v. Union  of India  & Ors.<\/a>  [(1962)
\n     Supp. (1)\tS.C.R. 358]  is\t enough\t to  show  that\t the
\n     conduct of\t the accused  and the incredible version set
\n     up by  him were  enough to\t saddle the accused with the
\n     necessary knowledge of the character of the goods found
\n     in his possession.\n<\/p><\/blockquote>\n
     …. …. ……. …. …. …. …. …. ….
\n     Atleast, the  burden of  proving an innocent receipt of
\n     gold lay  upon the appellant under section 106 Evidence
\n     Act. The  totality of  facts proved  was enough, in our
\n     opinion, to  raise\t a  presumption\t under\tsection\t 114
\n     Evidence Act  that the gold had been illegally imported
\n     into the  country so  as to  (be)\tcovered\t by  section
\n     111(d) of\tthe Act.  The appellant\t had not offered any
\n     other reasonable  explanation of the manner in which it
\n     was being carried.”\n<\/p><\/blockquote>\n
The facts  in this  case appear\t to be\tvery similar  to the
\nfacts in  the present case. Furthermore, the case of Balumal
\nJamnadas Batra\tv. State  of Maharashtra<\/a>(1)  was also a case
\nunder the  Customs Act\tand there also the presumption under
\nsection 123  was not  applicable. It  was held\ttherein that
\nhaving regard  to the  conduct of  the accused and nature of
\nthe articles  mens rea\twas established. In this connection,
\nthis Court observed as follows :-\n<\/p>\n
\t  “The very  appearance of  the goods and the manner
\n     in which  they were  packed indicated  that  they\twere
\n     newly manufactured\t and brought  into this country very
\n     recently from another country. The inscriptions on them
\n     and writing  on the  boxes were  parts of\tthe state in
\n     which the goods in unopened boxes were found from which
\n     inferences about  their origin  and recent import could
\n     arise.   The   appellant’s\t  conduct,   including\t his
\n     untruthful\t denial\t  of  their   possession,  indicated
\n     consciousness of their smuggled character or mens rea.”<\/p><\/blockquote>\n
     From the  aforesaid case also it would appear that this
\nCourt was prepared to draw a presumption against the accused
\nfrom the fact that
\n1014<\/span>
\nthe articles  concerned were  concealed and  had  particular
\nmarkings and  special features\tand from  the nature  of the
\nunsatisfactory explanation given by the accused.\n<\/p>\n
     While it  is, therefore,  true that in the instant case
\nthe seizure was not made under s. 111 of the Customs Act and
\nthe prosecution could not press into service the presumption
\narising from s. 123 of the Customs Act, that does not clinch
\nthe issue. It is proved that the appellant was in possession
\nof gold\t with foreign  markings which was found to be in the
\nshape of  biscuits or  bars kept  in a secret chamber of the
\nsafe, and  that the  accused  admitted\tthat  the  gold\t was
\nbrought from  outside the  country and\twas given  to him by
\nsomebody whose\tidentity he  was not  prepared to  disclose.
\nThus, the  appellant knew  as to  who was the person who had
\ngiven him the gold and if he also knew, as he says, that the
\ngold was smuggled, he must have known whether the person who
\ndelivered the  gold to\thim brought  it under  a  permit  or
\nwithout any permit because at the time of the occurrence the
\nimport\tof   gold  was\t banned\t excepting   under   special
\ncircumstances.\tHaving\t regard\t to   the  totality  of\t the
\nsituation, there  is no reason why the prosecution would not
\nbe entitled  to call  into aid\tthe combined  effect of\t the
\npresumptions under  ss. 106  and 114 of the Evidence Act. We
\nare, therefore,\t satisfied that\t the prosecution has clearly
\nproved the  charge under  s. 135(1)  (b) (ii) of the Customs
\nAct.\n<\/p>\n
     It was  also contended  by Dr. Chitale that as the case
\nhad been  going on  for eight  years, a\t lenient view on the
\nquestion of  sentence may  be taken.  The sentence being one
\nonly of\t rigorous imprisonment\tfor nine  months,  we  think
\nthere is no room for any reduction thereof.\n<\/p>\n
     For the  reasons given  above, the\t appeal fails and is
\naccordingly dismissed.\n<\/p>\n
N.V.K.\t\t\t\t\t   Appeal dismissed.\n1015<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Shah Gumman Mal vs The State Of Andhra Pradesh on 6 February, 1980 Equivalent citations: 1980 AIR 793, 1980 SCR (2)1005 Author: S M Fazalali Bench: Fazalali, Syed Murtaza PETITIONER: SHAH GUMMAN MAL Vs. RESPONDENT: THE STATE OF ANDHRA PRADESH DATE OF JUDGMENT06\/02\/1980 BENCH: FAZALALI, SYED MURTAZA BENCH: FAZALALI, SYED MURTAZA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-245676","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nShah Gumman Mal vs The State Of Andhra Pradesh on 6 February, 1980 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shah-gumman-mal-vs-the-state-of-andhra-pradesh-on-6-february-1980\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shah Gumman Mal vs The State Of Andhra Pradesh on 6 February, 1980 - 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