BHANABHAI KHALPABHAI versus THE COLLECTOR OF CUSTOMS AND ANR.

Citation: [1994] 2 S.C.R. 348 · Decided: 08-03-1994 · Supreme Court of India · Bench: K. JAYACHANDRA REDDY, N.P. SINGH

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Judgment (excerpt)

A 
BHANABHAI KHALPABHAI 
v. 
THE COLLECTOR OF CUSTOMS AND ANR. 
MARCH 8, 1994 
B 
[K. JAYACHANDRA REDDY AND N.P. SINGH, JJ.] 
O.istoms Act, 1962: Ss.11-J, 135(1)(a) and 138-A-Silver ingots-
Nutified as specified goods-Recovery of-From specified area-Fraudulent 
evasion or attempt at evasion-Prohibition of-Culpable mental state-
C Presumption of-Accused to prove that such mental state <lid not exist. 
On suspicion that some contraband goods were unloaded at the wadi 
of the appellant, officials of the Police and Customs carried out a search 
in the wadi and on digging the ground near a well, 101 silver ingots worth 
over Rs. 18 lakhs were recovered. After the recovery, the statement of the 
D appellant was recorded in accordance with S.108 of the Customs Act, 1962, 
in which he admitted the recovery, but stated that he cl.id not know how the 
silver bars came there. Silver ingots has been notified as 'specified goods' 
and the wadi of the appellant was within 50 kms. from the Coast of India 
and as such was within the 'specified area' notified under the Customs Act. 
E prosecution was laid against. the appellant and he was convicted for an 
offence under S.135(1)(a) of the Customs Act. He preferred an appeal and 
the High Court dismissed the same. Hence the appeal. 
F 
G 
On behalf of the appellant it was contended that the ingredients of 
s. 135(1)(a) had n~t been fulfilled so as to hold that the appellant com-
mitted an offence under that section, since the prosecution had not estab-
lished that the silver ingots had been kept hurried in connertion with any 
fraudulent evasion or attempt at evasion of any duty chargeable thereon. 
Dismissing the appeal, this Court 
HELD: 1.1. Sub-section (1) of Section ll·J of the Customs Act, 1962 
which had come in force w.e.f. 3.1.1969, required every person who owns, 
possesses, or bas control, on the specified date, over any specified goods, 
the market price of which el1ceeds fifteen thousand rupees, to deliver to the 
proper officer, an intimation containing the particulars of the place where 
H 
such goods had been kept or had been stored within the specified area. 
348 
• 
. . 
' 
BHANABHAI v. COLLECTOR 
349 
' ' 
Sub-section (2) of S.11 ·J prescribed a bar on acquiring any specified goods A 
within the specified area unless before making such acquisition, he delivers 
to the proper officer an intimation containing the particulars of the place 
where such goods are proposed to be kept or stored, after such acquisition. 
Per se this will amount to be prohibition In acquiring specified goods 
within the specified area, the value whereof exceeds fifteen thousand rupees B 
unless the conditions for such acquisition are fulfilled with. [345-D-G] 
. -
1.2. There is no dispute in the present case that the appellant, never 
before making acquisition, delivered to the proper officer any intimation 
in respect of acquisition, of those silver ingots and the place where such 
silver ingots were proposed to h• kept or stored af\ev the o.c<jUisition. In c 
this background, there should not be any ~.ifficulty In contencling that the 
appellant was concerned in fraudulent •~ dSion or attempt at evasion of the 
aforesaiil. prohibition under sub-section (2) of Section 11-J in relation to 
specified goods. [354-G-H; 355-A) 
• 
1.3. In view of Section 138-A d ih~ Act a presumption has to be D 
_, 
drawn, in respect of existence of the alleged i::ental state. An option bas 
been given to the accused to prove by way or defence the fact, that be did 
not have any such mental state with respect Lo lbc act charged which is an 
offence. This provision is an exception to the general criminal 
jurisprudence that onus never shifts on the accused and be had only to E 
raise a doubt in the mind of the Court, in respect of the correctness of the 
prosecution version. It Is different from Sections 106 and 114 of the 
Evidence Act. In view of Section 138-A, once a presumption is raised about 
a culpable mental state on the part of the accused. that be bad stored the 
' 
silver ingots, to export them outside the country evading payment of 
F 
custom duties, the accused has to provide as a defence that no such mental 
state with respect to the act charged, did exist. No meterial has been 
produced on behalf of the appellant to discharge this burden. 
[355-F-H, 356-A) 
1.4. The prosecution bas established that the appellant was con- G 
cerned in an attempt at evasion of duty under the provisions of the Act, 
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