D.C. Dheewala, J.
1. The present appeal are directed against the order of acquittal recorded by the learned Additional Session Judge, Bharuch in Criminal Appeal No. 14/79, which again was directed against the judgment of conviction recorded by the learned Chief Judicial Magistrate in Criminal Case No. 25/77. The present Respondent along with another were prosecuted for an offence punishable under Section 135 of the Customs act.
2. The facts leading to the prosecution of the two accused can be briefly narrated as under.
On 9-10-1972 at about 7.00 a.m. a Police Sub-Inspector had intercepted a car bearing No. GJC 1088 on a suspicion. The present respondent along with one other were found in the said car and the luggage booth of the said car when opened was found to contain a huge haul of contraband goods, namely, textile fabrics of foreign origin. Both the accused were prosecuted and the learned C.J.M. came to the conclusion that the prosecution had proved its case beyond a reasonable doubt against both the accused persons. He, therefore, convicted them for an offence punishable u/s 135 of the Customs Act and each one of them was sentenced to undergo R.I. for two years and to pay a fine of Rs. 2000/- i.d. further R.I. for three months.
3. The matter was carried in appeal before the learned Additional Sessions Judge, who accepted the appeal of the present Respondent, while he rejected the appeal of his co-accused and confirmed his conviction.
4. The present appellant was acquitted and State of Gujarat being aggrieved by the said order has carried the matter before this Court by way of these two appeals.
5. These two appeals are by State of Gujarat and the Union of India. As they are directed against the same order, they are being disposed of by this common judgment.
6. Mr. K. J. Vaidya, the learned Public Prosecutor appearing on behalf of the appellant urged that the strict standard of proof which is to be applied for judging the prosecution case in other criminal trials, is not to be applied while judging the case of the prosecution under the Customs Act. According to Mr. Vaidya, u/s 138A of the Customs Act, there is a presumption of culpable mental state. Section 138A may, with advantage, be extracted here. It reads as under :
'138-A Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation. - In this section, 'culpable mental state' includes intention, motive, knowledge, of a fact and belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact, is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.'
7. Relying upon this statutory provision Mr. Vaidya urged that once a mens rea is to be presumed the burden will be on the accused to prove that he had not harboured any mental state or criminal intent. Mr. Vaidya, therefore, urged that in the instant case the learned Additional Sessions Judge had completely lost sight of this very important aspect of the case.
8. It may be noted at this stage that the learned Public Prosecutor incharge of the conduct of the trial before the learned Additional Sessions Judge had in terms conceded that the evidence was insufficient to hold the present respondent guilty. However, if that concession had proceeded from wrong impression of the statutory provision that of course would not be binding and if this court were to come to a conclusion that the Respondent-accused in the present case had not discharged that burden which he was supposed to discharge in view of Section 138A of the Act, there would be no difficulty in reversing the order of acquittal passed by the learned Additional Sessions Judge in his favour.
9. However, it may be noted that the prosecution in order to connect the accused with the crime, has largely placed reliance upon Ex. 33 which is the statement of the original accused No. (1) recorded under Section 108 of the Act. In this particular statement, the co-accused of the respondent had categorically stated that it was he who had stored the contraband goods in the luggage booth at Daman and thereafter asked the present respondent to accompany him to Ahmedabad. The present respondent did not know how to drive the car though he had purchased this car from which the contraband goods were found. The vehicle was not standing in his name in the R.T.O. records, and while he had paid the price it was his case that original accused No. 1 had invited him to have a bacchalian about at Daman which the present respondent had readily accepted. His co-accused was to drive the vehicle all throughout and it was at Daman that without the knowledge of the present respondent and without his consent that original accused no. 1 had stuffed the luggage booth with contraband goods. The prosecution when it had relied upon that statement Ex. 33 for convicting original accused no. 1 that statement cannot be utilised piecemeal, If that statement is to be relied upon by the prosecution, all the contents of the statement shall have to be taken into consideration. The statement given by the present respondent was also to the same effect and it was identical with the statement Ex. 33. The very evidence namely, Ex. 33 on which the prosecution wanted to rely upon for getting the other accused convicted, by itself discharged the burden which is contemplated u/s 138A of the Customs Act. Mr. Vaidya's attempt therefore, for pressing into service Section 138A for reversing the finding of acquittal in favour of the present respondent would be of no avail to the appellant-State.
10. Mr. Vaidya also drew our attention to the fact that the circumstances of the case, namely, the early hour interception by Police at Narmda Bridge check-post, statement of accused Nos. 1 and 2, nature, character and quantity of goods seized, inventory and entry in the godown register at Exs. 23 and 24 very definitely prove the complicity of the Respondent. Now, these circumstances, definitely went against the original accused no. 1 who has been convicted by the learned Chief Judicial Magistrate and whose conviction was confirmed upto the highest form. However, mere factum of the existence of these circumstances by itself cannot be used as evidence evincing the mens rea of the present respondent. The statement of both the accused persons are unanimous on the point and that being the main pillar of the prosecution against the respondent, we are firmly of the opinion that the present respondent had discharged the burden which he was required to discharge u/s 138A of the Customs Act.
11. Mr. Vaidya also drew our attention to a case reported in 18 GLM P. 289 (Union of India v. Kanbanalal Trikanlal & ors). In the said case the learned Single Judge of this court had occasion to del with the provisions of Section 138A of the Act and in para 7 of the said judgment the learned Single Judge observed the culpable mental state which is contemplated by the section is 'knowledge'. A person who consciously acquires, deposits, sells, keeps, purchases or in any other manner deals with any goods which he knows or has reason to believe that the same are liable to confiscation under Section 111 can be held guilty under Section 125 of the Act. 'There cannot be any dispute regarding this weighty observation. However, as the learned Singly Judge has observed the section contemplates 'knowledge' and in the instant case by the prosecution evidence itself it is revealed that he had no such knowledge and the facts of the said case are distinguishable from the facts of the present case, in as much as in the said case the accused had dealt with the contraband goods. In the instant case, he did not even so much as know that this car was stuffed with contraband goods. We, therefore, feel that the order of acquittal recorded by the learned Additional Sessions Judge was perfectly justified and that was the only conclusion that he could have arrived at. There being no substance in the present appeals they fail and are consequently dismissed confirming the order of acquittal recorded by the learned Additional Sessions Judge.