Concealed foreign-marked gold and admissible statements can trigger the statutory burden, but mere association does not prove possession.

Recovery of gold biscuits with foreign markings from a concealed cavity, together with the seizure circumstances and the accused's admissible statements, was sufficient to sustain conviction under the Customs Act and the Gold (Control) Act because the facts attracted the statutory burden under Section 123. The surrounding circumstances, including concealment and high-purity foreign-marked gold, supported the prosecution case and the conviction of Rohit Kumar was restored. By contrast, Kapil Mehra could not be convicted merely for travelling with the co-accused or being related to him, as no incriminating article was recovered from him and there was no proof of conscious possession or individual culpability.

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Issues: (i) whether the recovery of gold biscuits with foreign markings, coupled with the circumstances of seizure and the accused's statements, justified conviction of Rohit Kumar under the Customs Act, 1962 and the Gold (Control) Act, 1968; and (ii) whether Kapil Mehra could be convicted merely because he was travelling with Rohit Kumar and was related to him.

Issue (i): Whether the recovery of gold biscuits with foreign markings, coupled with the circumstances of seizure and the accused's statements, justified conviction of Rohit Kumar under the Customs Act, 1962 and the Gold (Control) Act, 1968.

Analysis: The recovery was made on prior secret information from a concealed cavity in an attache-case. The goods were described by Customs officers as gold biscuits, bore foreign markings, were of high purity and value, and were recovered in circumstances indicating smuggling. The accused's statements were admissible and could be relied upon. In such matters, once the seizure is made in reasonable belief that the goods are smuggled, the statutory burden under Section 123 applies, and the surrounding circumstances, including the nature of concealment and foreign markings, supported the prosecution case.

Conclusion: The conviction of Rohit Kumar was justified, and the acquittal recorded by the lower appellate Court could not stand.

Issue (ii): Whether Kapil Mehra could be convicted merely because he was travelling with Rohit Kumar and was related to him.

Analysis: No incriminating article was recovered from Kapil Mehra. There was no material showing conscious possession of smuggled gold on his part, and mere presence with the co-accused or family relationship was insufficient to fasten criminal liability.

Conclusion: Kapil Mehra was not liable to conviction.

Final Conclusion: The appeal succeeded in part by restoring the conviction of Rohit Kumar, while maintaining the acquittal of Kapil Mehra.

Ratio Decidendi: In prosecutions involving seizure of gold under the Customs Act, foreign markings, concealment, admissible statements of the accused, and surrounding circumstances may establish the charge and attract the statutory burden of proof under Section 123; however, liability cannot be imposed on a co-accused without proof of conscious possession or individual incriminating material.

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