Full Judgment Text
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PETITIONER:
HUKMA
Vs.
RESPONDENT:
STATE OF RAJASTHAN
DATE OF JUDGMENT:
29/08/1963
BENCH:
GUPTA, K.C. DAS
BENCH:
GUPTA, K.C. DAS
HIDAYATULLAH, M.
CITATION:
1965 AIR 476 1964 SCR (4) 708
ACT:
Sea Customs-Seizure of Gold-jurisdiction of Customs Officer-
"Adjoining", meaning of-Proof of mens rea--Sea Customs Act,
1878 (8 of 1878), ss. 167(81), 178-A-Land Customs Act, 1924
(19 of 1924), cls. (e)(g), of ss. 2, 3-Central Excises
Rules, 1944,r. 2(ii)(A)(1).
HEADNOTE:
The appellant was found carrying 286 tolas of gold in
running train between Kerla and Pali stations by the Sub
Inspector of Barmer District. After the gold was seized,
criminal proceedings were instituted against the appellant.
The trial court acquitted the appellant but the High Court
convicted him. The appellant’s case in this Court was that
the seizure of the gold from him had not been proved; that
the Sub-Inspector was not a Customs Officer for the place
where the seizure was made, and so the
709
seizure was not under the Land Customs Act; and that, in any
view of the case, the prosecution had failed to prove the
necessary mens rea in the appellant.
Section 3 of the Land Customs Act authorises the Central
Government to appoint by notification one person to be the
Collector of Land Customs for any area adjoining a foreign
frontier and specified in the notification. The section
also authorises the Central Government to appoint such other
persons as it thinks fit to be customs officer for the same
area by a similar notification.The relevant notification
issued was as follows:-
"1. In exercise of the powers conferred by
sub-section (1) of section 3 of the Land
Customs Act 1924 (19 of 1924) read with the
notification of the Government of India in the
late Finance Deptt. (Central Revenues) No.
5444, dated 1st December 1924, the Central
Board of Revenue hereby appoints for the areas
adjoining the Land Customs Frontier separating
West Pakistan from India, the officers of the
Government of Rajasthan specified in the
Schedule hereto annexed, to be land Customs
Officers within the jurisdiction of the
Collector of Land Customs Delhi.""The
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Schedule."
"All officers of the Rajasthan Civil Police
and the Rajasthan Armed Constabulary of and
above the rank of Head Constable posted in the
Districts of Barmer, Bikaner, Ganganagar,
Jaisalmer and Jalore in the State of
Rajasthan."
Held, that the word "adjoining" in the above notification
means the whole compact block consisting of the State of
Punjab, Jammu and Kashmir and Rajasthan and the Union
territories of Himachal Pradesh and Delhi as one area
adjoining the West Pakistan Frontier, and that for this
entire area one person was appointed the Collector of Land
Customs. Every officer, therefore, mentioned in the
Schedule would be a Customs Officer not for any particular
District mentioned in the Schedule but for the whole area
which forms the jurisdiction of the Collector of Land
Customs Delhi.
Since in the instant case, the Sub-Inspector was an officer
mentioned in the Schedule, he would be an officer for the
entire area which formed the jurisdiction of the Collector
of Land Customs, Delhi, including the place where the
seizure was made, and was therefore, competent to make the
seizure.
Held, further, that on the evidence the story of the re-
covery of gold from the appellant was true, and that the
circumstances, manner, quantity and the form in which gold
was carried, clearly showed that the appellant was smuggling
gold knowingly and with the intention of evading the
prohibition in force with respect to the import of gold into
the country.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 152 of
1962.
710
Appeal by special leave from the judgment and order dated
April 4, 1962 of the Rajasthan High Court in D. D. Criminal
Appeal No. 505 of 1961.
S. K. Kapur, S. Murthy, B. N. Kirpal and K. K. lain,
for the appellant.
H. R. Khanna and B. R. G. K. Achar for P. D. Menon,
for the respondent.
August 29, 1963. The judgment of the Court was delivered by
DAS GUPTA J.-This appeal by special leave is against a
conviction and sentence under s. 167(81) of the Sea Customs
Act, 1878. The appellant was acquitted by the trial court,
but on appeal by the State of Rajasthan, the Rajasthan High
Court set aside the order of acquittal and convicted the
appellant under s. 167(81) of the Sea Customs Act, and
sentenced him to rigorous unprisonment for one year. The
prosecution case was that on receipt of some information
that gold smuggled from Pakistan was being carried, Lal
Singh, Sub-Inspector of the Check-post of Barmer, followed
the appellant into a railway train at Luni railway station,
and in the running train between the stations of Kerla and
Pali, searched appellant’s person and found that he was
carrying 286 tolas of gold in a pouli under his trousers.
In the reasonable belief that these were smuggled goods, Lal
Singh seized the gold. The gold that was seized consisted
of six blocks bearing marks "999", N. M. Rothschild & Sons,
22 bars bearing marks ’999’, 3 small pieces of gold and one
pair of murkies. Lal Singh seized the gold after preparing
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a seizure list in the presence of witnesses and later
produced the appellant along with the gold before the
Superintendent, Land Customs, Barmer. By an order of the
Collector of Customs, New Delhi, dated July 19,1957, this
gold was confiscated and a fine of Rs. 10,000 was imposed on
the appellant. Criminal proceedings were afterwards
instituted against the appellant on the allegation that he
had committed an offence under s. 167(81) of the Sea Customs
Act. The prosecution claimed that under s. 178-A of the Sea
Customs Act, the burden of proving that gold was not
smuggled lay on the accused. Even apart from that, the
prosecution claimed, it was clear that the gold had been
smuggled. It was alleged that the appellant had carried
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the gold knowingly with intent to evade the regulations
prohibiting the import of gold Into India.
The main defence of the accused, who pleaded not guilty, was
that no gold was recovered from him. The trial court held
that the prosecution had failed to establish the recovery of
gold from the accused. It further accepted the defence
contention that Lai Singh had no authority to search the
appellant and seize the gold at the place where the seizure
was alleged to have been made. According to the learned
Magistrate, the seizure, if any, had not been made under the
Land Customs Act and so had not been made under "the Act"
within the meaning of s. 178-A, and there was no question of
the accused having to prove that the gold was not smuggled.
On the evidence adduced by the prosecution, he was not
convinced that it was smuggled gold. Accordingly, he
acquitted the accused. The High Court came to contrary
findings on all these points. It held that the evidence of
Lal Singh as regards the seizure should be believed and that
the seizure of the gold from the accused had been proved
satisfactorily. It was also of the opinion that Lal Singh
had authority to seize the gold at the place where the
seizure was made, and that s. 178-A of the Sea Customs Act
applied. In the opinion of the High Court, the accused had
failed to prove that the gold was not smuggled and that
under the provisions of s. 178-A as also on the evidence in
the case, the gold had been established to be smuggled gold.
All the ingredients of the offence, according to the High
Court, had been proved, and therefore, the accused was
convicted and sentenced as mentioned above.
Three points were raised before us by Mr. S. K. Kapur in
support of the appeal. The first was that the High Court
was not justified in disturbing the trial court’s finding
that the seizure of the gold from the accused had not been
proved. The second point urged was that the High Court had
fallen into an error in thinking that Lal Singh had
authority to seize the gold at the place where the seizure
was made. The third contention was that in any case even if
s. 178-A applied and it was found that the gold was
smuggled, the prosecution had failed to prove the necessary
mens rea in the accused that was necessary to constitute the
offence.
712
On the question of seizure of gold from the accused, the
prosecution relied on the testimony of Lal Singh himself.
Lal Singh gave a detailed account as to how he followed the
accused into the train at Luni station and in the running
train conducted the search of his person in the presence of
witnesses and recovered from his possession from a pouli
tied beneath his trousers the gold identified in court as
Ex. P.M. 1-32. The seizure Memo. which he claimed to have
prepared at the time of the seizure was marked Exh. P. 3.
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This document mentions the names of three persons as search
witnesses. None of these was examined by the prosecution.
The third name mentioned in Exh. P. 3 is Pukh Raj son of
Awasthi Mal, aged about 22 years, resident of Ajit. The
defence examined a Pukh Raj who gave his father’s name as
Basti Mal and who was resident of Ajit, and stated that he
was the only Pukh Raj in that village. The High Court seems
to have doubted the indentity of Pukh Raj examined as
defence witness as the Pukh Raj mentioned in the seizure
list. This finding has been attacked by Mr. Kapur as un-
justified. Whether or not the Pukh Raj examined as defence
witness is the same as the person whose name is mentioned in
the seizure list, is not, however, of much consequence; for
the fact remains that the prosecution has not got the
evidence of any of the witnesses in whose presence the
search and seizure are said to have been made, to support
Lal Singh’s evidence. The learned Magistrate gave this
failure of the prosecution to examine the witnesses as the
main reason for his inability to accept Lal Singh’s
testimony. The High Court has accepted Lal Singh’s
testimony, but unfortunately the judgment does not indicate
that the learned judges of the High Court took into
consideration this fact that the search witnesses had not
been examined. We have, therefore, thought it necessary to
examine the evidence for ourselves to see whether the
seizure as alleged by the prosecution has been proved. Lal
Singh’s evidence on the point has already been mentioned.
It has to be noticed that the defence witness No. 2, Poonam
Chand, has also spoken about the search. His evidence is
that police conducted search in the compartment when the
train was enroute from Luni to Pali, and that "the police
took search of the
713
accused Hukma present before the court and of two or three
more persons named Kesrimal and Tarachand". The witness
added no gold was recovered from: the possession of the
accused Hukma Ram, but admitted that in the same compartment
a purse was recovered. It has to be noticed that when Lal
Singh was examined, no suggestion was made to him in cross-
examination that any other person had been searched in the
compartment. It is not unreasonable to think, therefore,
that when Poonam Chand is speaking of search in the com-
partment of Hukma and the find of a purse there though
stopping short of saying what was recovered from it, his
evidence unwittingly supports the story given by Lal Singh
about the search and the recovery of the gold. It does not
stand to reason that if two other persons bad been searched
and gold had been found within one of them, this appellant,
a pointsman in the Railway, should be falsely implicated and
the person from whom the recovery of gold was made, should
have been allowed; to, escape. The accused suggested in his
statement that Lal Singh was inimically disposed towards him
because on one occasion Lai Singh had asked him to serve
water and he had not done it at once. There was no
suggestion about this incident to Lai Singh in his cross-
examination, and we are convinced that this is: entirely
false. On a consideration of Lal Singh’s evidence along
with the evidence of appellant’s own witness, Poonam Chand
we are convinced that the story of recovery of gold from the
accused is true. The reason why the three witnesses
mentioned in the seizure list have not come forward to
support the prosecution case is, in, our poinion, not that
the story of search and seizure as given by Lal Singh is not
true, but that these witnesses have been gained over.
This brings us to Mr. Kapur’s main contention, namely, that
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Lal Singh was not a Customs Officer for the place where the
seizure was made, and so the seizure was not under the Land
Customs Act, taken with the provisions of the Sea Customs
Act. The answer to this contention depends on the
construction of the notification appointing Customs Officers
for the areas adjoning the frontier between West Pakistan
and India. The notification as it stands after an amendment
in 1956, runs 46-2 S. C. India/64
714
as follows:-
"1. In exercise of the powers conferred by
Sub-section (1) of section 3 of the Land
Customs Act 1924 (19 of 1924) read with the
notification of the Government of India in the
late Finance Deptt. (Central Revenues) No.
5444, dated 1st December 1924, the Central
Board of Revenue hereby appoints for the areas
adjoining the Land Customs Frontiers
separating West Pakistan from India, the
officers of the Government of Rajasthan
specified in the schedule hereto annexed, to
be Land Customs Officers within the
jurisdiction of the Collector of Land Customs
Delhi."
"The Schedule."
"All officers of the Rajasthan Civil Police
and the Rajasthan Armed Constabulary of and
above the rank of Head Constable posted in the
Districts of Barmer, Bikaner, Ganganagar,
Jaisalmer and Jalore in the State of
Rajasthan."
Asking us to give a restricted meaning to the word
"adjoining" in the notification, Mr. Kapur has suggested
that this notification gave authority to the Customs
Officers only for the areas within a few miles from the
border, He contended next that even if this be not accepted,
the notification on a reasonable interpretation gave
authority only to the officers of the Districts mentioned in
the Schedule to function as Customs Officers in those
Districts and nowhere else. The trial court appears to have
accepted this construction, and as admittedly the place of
seizure was not in any of the District mentioned in the
Schedule, it held that Lal Singh was not authorized to
search the accused or to seize the gold. The High Court, on
the contrary, has taken the view that each of the officers
mentioned in the Schedule has been appointed a Customs
Officer for the entire area which has "jurisdiction of the
Collector of Land Customs, Delhi".
In our opinion, this is the correct and only possible
construction. Section 3 of the Land Customs Act authorizes
the Central Government to appoint by notification in the
official gazette one person to be the Collector of Land
Customs for any area adjoining a foreign frontier and
specified in the notification. The section also authorizes
715
the Central Government to appoint by a similar notification
such other persons as it thinks fit to be Customs Officers
for the same area. "Foreign frontier" has been defined in
s. 2, cl. (e) of the Act as the frontier separating any
foreign territory from any part of India. "Land Customs
area" has been defined in cl. (g) of the same section as any
area adjoining a foreign frontier for which a Collector of
Land Customs has been appointed under s. 3. From the
definition of foreign frontier in cl. (e), it is clear that
an area adjoining the frontiers separating any foreign
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territory from any part of India, is within these words.
What, then is meant by the word ’adjoining’? According to
Mr. Kapur, only a few miles near the frontier can be
considered to be adjoining the frontier. We can see no
justification for such a restricted construction of the word
" adjoining". It is true that the village next to the
frontier adjoins the frontier. It is equally correct,
however, to describe the entire District nearest the
frontier as adjoining the frontier ; and we can see nothing
wrong in the entire State of Rajasthan adjoining the West
Pakistan Frontier. It appears to us that the Central
Government treated the whole compact block consisting of the
State of Punjab, State of Jammu & Kashmir and State of
Rajasthan and Himachal Pradesh and Delhi as one area ad
joining the West Pakistan frontier, and for this one area it
appointed a Collector of Land Customs. This appears clear
from the order appointing the Collector of Central Excise,
Delhi, to be the Collector of Land Customs (Notification No.
2L Customs, dated 25th January, 1958), taken with Rule 2(ii)
A (i) of the Central Excise Rules, according to which
Collector means "in the State of Punjab, Jammu and Kashmir
and Rajasthan and in the Union Territories of Himachal
Pradesh and Delhi, the Collector of Central Excise, Delhi".
In other words, the jurisdiction of the Collector of Central
Excise, Delhi, is not only over Delhi, but also it extends
to the States of Punjab, Jammu & Kashmir and Rajasthan and
the Union Territories of Himachal Pradesh and Delhi. It was
for this entire area that the collector of Central Excise,
Delhi was appointed Collector of Land Customs. The
resultant position, therefore, is that for this entire area
of Punjab, Jammu and Kashmir, Rajasthan, Himachal and Delhi,
one person has been ap-
716
pointed Collector of Customs. When, therefore, the Central
Government proceeded next to appoint Land Customs Officers
and stated that certain officers as specified in the
schedule were appointed Land Customs Officers "for the areas
adjoining the land customs frontiers separating West
Pakistan from India", and added the words that they were to
be Land Customs Officers "within the jurisdiction of the
Collector of Land Customs, Delhi," it appears to us to be
quite clear that every officer mentioned in the Schedule
would be a Customs Officer-not for any particular District
mentioned in the Schedule but for the whole areas which
forms the Jurisdiction of the Collector of Land Customs,
Delhi and is the area adjoining the West Pakistan frontier
for which a Collector of Land Customs has already been ap-
pointed under s. 3. We find no justification for reading
into the Schedule any indication of the area where the
officers will operate. The Schedule purports to mention the
different officers of different districts who arc appointed
Land Customs Officers-not for those particular Districts but
for the entire area. Any other reading of the words used in
the main body of the notification would be not only against
the plain meaning of the words used but is likely to defeat
the object for which Land Customs Officers are appointed.
We have, therefore, come to the conclusion that the
construction put by the High Court on the notification is
right, and Lai Singh, being an officer in the District of
Barmer which is mentioned in the Schedule, was an officer
for the entire area which formed the jurisdiction of the
Collector of Land Customs, Delhi, including the place where
the seizure was made, and was therefore competent to make
the seizure.
There remains for consideration the last point raised by the
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learned counsel, namely, that even if Lal Singh had
authority to seize at the place where the seizure was made
and s. 178-A of the Sea Customs Act applied, the prosecution
had still to prove by further evidence that the accused had
the mens rea necessary to constitute the offence. Learned
counsel rightly pointed that while s. 178-A has the result
of placing the burden of proof that the gold was not smug-
gled on the accused, it is of no assistance to the prose-
cution to prove that the accused was carrying the gold
717
knowingly to evade the prohibition which was for the time
being in force with respect to the import of gold into
India. Once, however, it is found, as it must be found in
this case, in consequence of the provisions of s. 178-A (the
accused has not tried to discharge the burden that lay on
him that the gold was not smuggled) that he was carrying
smuggled gold, the circumstances under which the gold was
discovered, the manner in which he was carrying the gold,
the considerable quantity of the gold that was being carried
and the form in which gold was being carried, namely, blocks
and bars in which the major portion of the gold was found,
all these circumstances establish beyond a shadow of doubt
that accused was carrying the gold knowingly and with the
intention of evading the prohibition that was in force with
respect to the import of gold into the country. Mr. Kapur
tried to argue that when gold is carried by persons, they
often carry it in this manner in a pouli concealed under
trousers. That may well be so. Here, however, there is an
additional circumstance that a pointsman of the Railway, not
expected to have so much gold in his possession, was
carrying the gold which was, as already mentioned in six
bloks and 22 bars apart from some small pieces and one pair
of murkees. The total quantity was as much as 286 tolas and
11 annas, that is, about three kilograms. When all these
circumstances are taken together, it is not possible to
accept learned counsel’s suggestion that he might be
carrying the gold innocently having purchased it from
somebody. In our opinion, the High Court has rightly held
that all the ingredients of the offence under s. 167(81) of
the Sea Customs Act have been established. It may be
mentioned that it has not been disputed before us that if we
believe the story of the recovery of the gold from the
appellant, the circumstances are sufficient to establish
that Lal Singh seized the gold in the reasonable belief that
these were smuggled goods.
In the view we have taken in this matter, it is unnecesary
to consider the further argument raised by Mr. H. R. Khanna,
who apperaed for the State that even apart from s. 178-A,
the guilt of accused could be held to be proved by the
confession made by him before the Deputy Superintendent,
Land Customs, corroborated as it
718
is by the recovery of the gold from him.
All the points raised in the appeal on behalf of the
appellant fail, and the appeal is, accordingly, dismissed.
Appeal dismissed.