Statutory presumption under Customs law applies only after proof of the seized goods, and mandatory search safeguards must be followed.

The statutory presumption under Section 123 of the Customs Act applies only after the prosecution proves the foundational fact that the seized articles are the specified goods and were reasonably believed to be smuggled; where proof that the biscuits were gold was not established, the burden did not shift to the accused. Non-compliance with the mandatory safeguard of informing the accused of the right to be searched before a Gazetted Officer or Magistrate rendered the search and seizure suspect and could not sustain conviction. A retracted statement under Section 108, without independent corroboration, was insufficient. The conviction and sentence were therefore set aside and the accused was acquitted.

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Issues: (i) Whether the prosecution had first to establish that the seized articles were gold and fell within the scope of the statutory presumption before the burden under Section 123 of the Customs Act, 1962 could shift to the accused. (ii) Whether non-compliance with the statutory safeguard of informing the accused of the right to be searched before a Gazetted Officer or Magistrate vitiated the search, seizure, and conviction.

Issue (i): Whether the prosecution had first to establish that the seized articles were gold and fell within the scope of the statutory presumption before the burden under Section 123 of the Customs Act, 1962 could shift to the accused.

Analysis: The statutory presumption under Section 123 applies only after the prosecution establishes that the seized goods are the specified goods and were seized in the reasonable belief that they were smuggled. On the evidence, the prosecution failed to remove the doubt as to whether the recovered biscuits were proved to be gold, since the evidence about testing by a goldsmith was withheld and remained unexplained. Without proving the foundational fact that the seized items were gold, the burden could not shift to the accused.

Conclusion: The prosecution failed to establish the foundational requirement for the statutory presumption, and the issue was answered in favour of the accused.

Issue (ii): Whether non-compliance with the statutory safeguard of informing the accused of the right to be searched before a Gazetted Officer or Magistrate vitiated the search, seizure, and conviction.

Analysis: The search was undertaken in exercise of powers analogous to those attracting the safeguard, but the record did not show that the accused was informed of the right to demand search before a Gazetted Officer or Magistrate. The statutory requirement was treated as mandatory, and its omission rendered the search and seizure suspect and incapable of sustaining the conviction. The retracted statement under Section 108 of the Customs Act, 1962 also could not stand alone without independent corroboration.

Conclusion: The non-compliance with the mandatory safeguard vitiated the conviction, and the issue was answered in favour of the accused.

Final Conclusion: The conviction and sentence could not be sustained, the revision succeeded, and the accused was acquitted.

Ratio Decidendi: For offences under the Customs Act, the statutory presumption against the accused arises only after the prosecution proves the foundational fact that the seized goods are the specified goods, and a conviction cannot rest on an uncorroborated retracted confession or on a search conducted without compliance with the mandatory procedural safeguard.

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