Conscious possession and Section 108 confession can sustain Customs conviction where lawful possession of smuggled gold is not proved.

Recovery of suspected smuggled gold from conscious possession can shift the burden under Section 123 of the Customs Act to the possessor to prove lawful possession. A statement recorded under Section 108, if voluntary and in the maker's own handwriting, may supply the basis to believe the goods are of foreign origin and support conviction under Section 135(1)(b). An unsigned bail application filed through counsel was not treated as an effective retraction and did not displace the confession. On those facts, the accused's failure to produce proof of lawful acquisition or possession left the conviction sustainable.

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Issues: Whether the conviction for offence under Section 135(1)(b) of the Customs Act could be sustained on the basis of the petitioner's statement under Section 108 of the Customs Act, and whether the burden under Section 123 of the Customs Act stood discharged when gold was recovered from the petitioner's baggage without documentary proof of lawful possession.

Analysis: The recovery of 2413 grams of gold of 23 carat purity from the petitioner's baggage was proved, establishing conscious possession. The petitioner failed to produce any document showing lawful acquisition or possession of the gold. The statement recorded under Section 108 of the Customs Act, being in the petitioner's own handwriting, supplied the basis for a reasonable belief that the gold was of foreign origin and smuggled. The later so-called retraction, made through an unsigned bail application filed by counsel, was not treated as a proper retraction and did not undermine the voluntariness of the confession. In such circumstances, once the prosecution establishes recovery and a basis for belief that the goods are smuggled, the burden shifts to the possessor to prove lawful possession, and the confession of the petitioner himself can be relied upon to sustain conviction.

Conclusion: The conviction was upheld and the revision failed.

Ratio Decidendi: Where recovery of suspected smuggled goods from conscious possession is proved, and the accused's voluntary statement under Section 108 of the Customs Act supports foreign origin, the burden shifts under Section 123 of the Customs Act to the accused to prove lawful possession, and conviction may rest on such confession if not effectively retracted.

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