Customs Act smuggling burden of proof: prosecution must independently prove unlawful import and confiscability before presumption applies.

In a prosecution under section 135(b) of the Customs Act, the prosecution must independently prove that the seized goods were imported contrary to law and were liable to confiscation under section 111(d). The presumption under section 123(1) does not apply where seizure is made by the police rather than under the Customs Act. Recovery of gold biscuits from the accused was supported by police and panch evidence, but the further allegation of smuggled import was not proved beyond conjecture. The conviction and sentence were therefore set aside for failure to establish unlawful import and confiscability.

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Issues: (i) Whether the prosecution proved that the gold biscuits were recovered from the accused. (ii) Whether the prosecution proved that the gold biscuits were imported in contravention of the prohibition in force so as to attract section 135(b) of the Customs Act, 1962.

Issue (i): Whether the prosecution proved that the gold biscuits were recovered from the accused.

Analysis: The evidence of the police officer, the panch witness and the panchanama supported the recovery of gold biscuits from cavities in the accused's sandals. The manner of seizure at the police station did not create sufficient doubt about the fact of recovery, and no material infirmity in the evidence on this point was established.

Conclusion: This issue was decided against the accused and in favour of the prosecution.

Issue (ii): Whether the prosecution proved that the gold biscuits were imported in contravention of the prohibition in force so as to attract section 135(b) of the Customs Act, 1962.

Analysis: To sustain a charge under section 135(b), the prosecution had to prove that the goods were liable to confiscation under section 111(d). The burden remained on the prosecution, and the statutory presumption under section 123(1) was unavailable because the seizure had been effected by the police and not under the Customs Act. The evidence relied on, including the foreign markings and the bare assertion that the gold was smuggled gold, was held insufficient to prove unlawful import beyond mere conjecture.

Conclusion: This issue was decided in favour of the accused and against the prosecution.

Final Conclusion: The conviction and sentence under section 135(b) of the Customs Act, 1962 were set aside because the prosecution failed to prove that the gold was smuggled goods liable to confiscation under the Act.

Ratio Decidendi: In a prosecution under section 135(b) of the Customs Act, 1962, the prosecution must independently prove that the seized goods were imported contrary to law, and the presumption under section 123 applies only when the seizure is made under the Customs Act.

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