1983 (3) TMI 275

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....f 1144 pcs. of various types of old and used clothes, without any markings on them, together with 40 pcs. of zip fasteners on the ground that they were all of foreign origin and hence, reasonably believed to have been smuggled ; (b) the Appellant's statement was recorded and a Panchnama prepared and he was made to sign both although he was illiterate and the contents thereof were not read over and admitted by him to be correct ; (c) he, nevertheless, stated that the old clothes were purchased from petty dealers and there was no record of such sales such as bills, etc.; (d) the fact, however, remained that the old clothes bore no markings to indicate their foreign origin ; (e) nevertheless, it was averred in the show-cause notice....

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....to indicate the country of origin on the clothes. The Zip fasteners could have been cut from used clothes ; (iii) there is no proof of their origin, aliunde ; (iv) even if they were of foreign origin, there was no evidence that they were smuggled into India ; (d) the circumstantial evidence in the case is not such as would necessarily lead to a conclusion of guilt of the Appellant and of the liability to confiscation of the goods ; (e) requiring the Appellant to prove by evidence of bills, etc. amounts to placing the onus on him although the goods were not notified goods; (f) the confiscation of the goods and the levy of penalty in the absence of proof of the requisite mens rea was unsustainable ; (g) in any case, the rede....

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....adverse inference can very well be drawn against him ; (e) coupled with the presumptive evidence already adduced by the Department, the adverse inference under Sec. 106 of the Evidence Act, is sufficient to rebut the initial presumption of the innocence of the person accused of the offence. Accordingly, it was concluded that the Department "would be deemed to have discharged its burden if it adduces only so much evidence, circumstantial or direct, as is sufficient to raise a presumption in its favour with regard to the facts sought to be proved." 6.  Applying the ratio of the aforesaid case to the facts of the instant case, it would appear that the Department had succeeded in discharging the initial onus cast on it to prove th....