Full Judgment Text
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PETITIONER:
LABHCHAND DHANPAT SINGH JAIN
Vs.
RESPONDENT:
THE STATE OF MAHARASHTRA
DATE OF JUDGMENT03/12/1974
BENCH:
BEG, M. HAMEEDULLAH
BENCH:
BEG, M. HAMEEDULLAH
CHANDRACHUD, Y.V.
GUPTA, A.C.
CITATION:
1975 AIR 182 1975 SCR (2) 907
1975 SCC (3) 385
CITATOR INFO :
C 1980 SC 593 (18,19)
R 1980 SC 793 (8)
ACT:
Customs Act, 1962, s. 108, 111, 123 and 135 Scope of.
Evidence Act (1 of 1872) S-106 and 114-Burden of proof of
innocent receipt of gold-Presumption against accused oil
totality of evidence, if properly drawn.
Code of Criminal Procedure (Act 5 of 1898) s. 342-No strict
compliance with-Effect of.
HEADNOTE:
The appellant was arrested because of his suspicious
conduct, and, when he was searched, 9 bars of gold with
foreign markings were found secreted in specially made
concealed pockets of his trousers. When he was produced be-
fore the Additional Chief Inspector of Customs he made a
statement recorded under s.108, Customs Act, 1962, In that
statement he admitted the recovery of the bars, that he knew
that he was carrying gold and that he knew that the the
transporting of the gold was an offence, but stated that he
was doing so on behalf of a 3rd party. He was convicted for
an offence under s.135)1)(b) of the Act and the conviction
was confirmed by the High Court.
In appeal to this Court, confirming the conviction,
HELD:(1) The offence under s. 135)1)(b) is punishable
if the offender acquires possession of or is in any way
concerned in carrying, removing, depositing. harbouring,
keeping concealing. selling or purchasing or in any other
manner dealing with any goods which he knows or has reason
to believe are liable to confiscation under- s. 1 1 1. [909
C-D]
In the present case, the totality of facts proved was enough
to raise a presumption under s.114. Evidence Act, that the
gold had been illegally imported into the country so as to
be covered by s.111(d). [911 D]
(a) The clandestine and guilty manner of transporting it
shows that it wasrecently smuggled gold carried contrary
to law. [910 0-H]
(b) The appellant’s, admission that he know that the
carrying of gold was an offence shows that the, gold must
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have been recently imported, or it any rate after 1948, when
restrictions on the import of gold were imposed. 1910
(c) The gold was being, carried from Bombay, a port of
entry for smuggled good$ to Delhi, where there, is a market
for gold. [910 G]
(d) The burden of proving an innocent receipt of gold lay
on the appellant under s. 106, Evidence Act,. and- he had
not discharged the burden. [911 A-B]
Issardas Daulat Ram & Ors. v. Union of India and Ors.,
[1962] Suppl (1) SCR 358 followed.
(2) Assuming that the ratio of Gian Chand v. State of
Punjab [1962] Supp. 1 S.C.R. 364 applied to the instant
case. the result would only be that no presumption under s.
123 of Customs Act could be drawn against the appellant.
But neither the trial Court nor the High Court had drawn any
such presumption against the appellant. The inference
regarding the character of the gold recovered and the
appellant’s guilty knowledge was drawn from circumstantial
evidence. [910 C-D]
(3) The general form of questions put in the case do not
strictly comply with the provisions of s.342, Cr.P.C., but
the appellant has not suffered any
908
injustice vitiating his conviction. He indicated in his
answers that he would give a written explanation and his
written statement dealt elaborately with all the
circumstances appearing in the evidence against him. [911 G-
H]
(4) In view of his age and the fact that there was no
previous conviction, the sentence of 3 months R.I. was
reduced to the period already undergone, which was nearly 3
months, as it was not desirable to send him back to jail for
a few days. [912 A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION Criminal Appeal No. 79 of
1971.
Appeal by Special Leave from the Judgment and Order dated
16th January 1-971 of the Punjab and Haryana High Court in
Criminal Appeal No. 1168 of 1968.
Hardayal Hardey and Ashok Grover, for the appellant.
H. R. Khanna and M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
BEG, J.-The appellant aged 23 was arrested on 9-4-1967 by
the Railway Police at the Bombay Central Railway Station as
he was hurriedly trying to get into a second class
compartment of the Frontier Mail bound for Delhi. It
appears that manner in which he was trying to enter the
second class compartment and his nervourness on being
questioned by a Railway C.I.D. Police Officer, although the
appellant had a ticket on him, aroused suspicion so that the
appellant was detained. On a search of his person at the
Police Station in the presence of Panchas, nine bars of gold
with foreign markings were found secreted in especially made
concealed pockets of his trousers. These were seized by the
Railway Police. After further questioning by the Police,
the appellant was summoned before Shri L. A. Digama, Addi-
tional Chief Inspector of Customs, Bombay, where his
statement under section 108 of the-Customs Act 1962 was
recorded on 10-4-67. In that statement, the appellant
admitted the recovery of gold bars from his person and
stated that he had agreed with one Pannalal to carry them
for delivery at Delhi for a sum of Rs. 100 to be paid to the
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appellant.-He stated that, from what Pannalal had told him
and also from the weight of the bars, he knew that he was
carrying gold. He stated that his father was also with him,
but, as nothing incriminating was recovered from the father,
he was allowed to go away. He also admitted that he knew
that transporting of Old like this was a criminal offence.
The appellant was prosecuted and convicted by the Presidency
Magistrate of Bombay under section 135(b) of the Customs’
Act of 1962 (hereinafter referred to as ’the Act’) and
sentenced to three months rigorous imprisonment. Charges
under the Defence, of India Rules were also preferred
against him but he was acquitted of these. The High Court
of Bombay; after carefully re-examining the whole evidence
in the case, had affirmed the conviction and sentence of the
appellant; but, the appellant bad obtained special leave to
appeal to this Court.
909
Learned Counsel for the appellant had urged before us that
the conviction of the appellant is vitiated on three
grounds.
Firstly, it is urged that there was no evidence whatsoever
to hold that the gold seized from the person of the
appellant was "liable to confiscation" as contemplated by
Section Ill of the Act. It is contended that the only
category in which the gold under consideration could fall is
Section 111(d) which describes it as of "any goods which are
imported or attempted to be- imported or are brought within
the Indian Customs waters for the purpose of being imported,
contrary to any prohibition imposed by or under this Act or
any other law for the time being in force".
It was urged that, as restrictions on the import of gold
were only imposed in 1948, there should have been some
evidence to show when it was brought into India. Apart from
other reasons given below, we think that this argument
overlooks that an offence under section. 135(1) (b) is
punishable if the offender "acquires possession of or is in
any way concerned in carrying removing, depositing,
harboring, keeping, concealing, selling or purchasing or in
any other manner dealing with any goods which he knows or
has reason to believe are liable to confiscation under
section Ill".
Secondly, it is contended that the High Court had wrongly
used section 123 of the Act so as to-wrongly place the
burden of proof on the appellant when this provision did not
apply. This Section reads as follows :
"(1) Where any goods to which this section
applies are seized under this Act in the
reasonable belief that they are smuggled
goods, the burden of proving that they are not
smuggled goods shall be....
(a) in a case where such seizure is made
from the possession of any person,. . . .
(i) on the person from whose possession the
goods were seized; and
(ii) if any person, other than the person
from whose possession the goods were seized,
claims to be the owner thereof, also on such
other person;
(b) in any other case, on the person, if
any, who claims to be the owner of the goods
so seize&’.
(2) This section shall apply to gold,
diamonds, manufactures of gold or diamonds,
watches, and any other class of goods which
the Central Government may by notification in
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the Official Gazette specify".
The argument is that, in order to apply section 123 of the
Act, there must be a "seizure" of the goods by the proper
Customs Officer duly authorised as provided by section 110
of the Act. Learned Counsel relied strongly on Gian Chand &
Ors. v. The State of Punjab,(1) where it. was held, under
the corresponding provisions of
(1) [1962] Supp. 1 S.C.R. 364.
910
Sea Customs Act, 1878, that the burden of proof was shifted
on to the accused only when the goods were "seized" in the
sense that they were taken out of the possession of an
accused by the "proper officer". That was also a case of
"seizure" of allegedly smuggled gold. There, the police had
initially commenced proceedings under Section 411 and 414 of
the Indian Penal Code against the accused, but, afterwards,
the case was handed over to the Customs’.authorities. The
initial "seizure" being one by the, ordinary police, it was
held to be not one under the Act. In that case, this Court
had set aside the order of the High Court because it held
that the statutory presumption could not be used to convict.
But, it did not, for that reason, acquit the accused. On
the other hand, it sent back the case to the Trial Court for
decision after considering the evidence without the aid of
the statutory presumption.
Even if we were to apply the ratio decidendi of Gian Chand’s
case (supra) in the case before us, we find that the result
would only be that no presumption under section 123 of the
Act could be used against the appellant. We do not think
that the High Court or the Magistrate had used this
presumption. We find that they had relied upon
circumstantial evidence in the case to infer the character
of the gold recovered and the accused’s guilty knowledge.
This brings us back to the first and the main contention on
behalf of the appellant which was that there is no evidence
to support the conviction of the appellant under section
35(b) of the Act. We are unable to accept this submission.
A reference to Issardas Daulat Ram & Ors. V. Union of India
& Ors.(1) is enough to show that the conduct of the accused
and the incredible version set up by him were enough to
saddle the accused with the necessary knowledge of the
character of the goods found in his possession. In the case
before us, we have not only evidence of the suspicious
conduct of the appellant but his own admission that he knew
that it was an offence to carry the gold which he had been
asked to transport for payment of money to him. He had put
forward an incredible story of having been entrusted with so
much gold by one Pannalal whose identity was not estab-
lished- and whose address was not revealed by the appellant.
According to the appellant, Pannalal had just met him by
chance. It is incredible that any person would entrust gold
valued at about Rs. 40,000, on which Rs. 17,000 was payable
as duty alone, to a youngster who was an utter stranger to
him even if the carrier was to get Rs. 100 for the risky
undertaking. It is significant that the appellant was found
carrying gold from Bombay, a port of entry for smuggled
goods, to Delhi, where there is a good market for gold. If
it was not recently smuggled gold carried contrary to law
there was no need for the clandestine and guilty manner of
transporting it. We think that, in the circumstances of the
case, an inference could very well be made that the gold
must have been recently imported into the country, or, at
any rate, after the’ law passed in 1948 restricting its
entry. The appellant admitted, in his statement under
Section 108 of the Act, that transporting of these pieces of
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gold was an offence. If the gold had
(1) [1962] Supp .(1) S.C.R. 358.
911
been legally imported before 1948 it could not be an offence
to carry it. The appellant had not proved who Pannalal, the
person who was alleged by him to have given him the gold to
carry, was. Atleast, the burden of proving an innocent
receipt of gold lay upon the appellant under Section 106
Evidence Act. The totality of facts proved was enough, in
our opinion, to raise a presumption under section 114
Evidence Act that the gold had been illegally imported into
the country so as to covered by Section 111(d) of the Act.
The appellant had not offered any other reasonable
explanation of the manner in which it was being carried.-
Thirdly, it was urged that Section 342 of the Criminal
Procedure Code had not been complied with inasmuch as only
two very general questions were asked by the Trying
Magistrate, followed by two others on one point. But, the
seizure of gold from his possession and the surrounding
circumstances were, not put to him. The first two questions
and answers were :
"Q. ’Have you heard the evidence ?
Ans. Yes.
Q. What have you to say in regard to the
evidence ?
Ans. I am filing my written statement. I
have nothing more to say.
I want to examine one witness from Chief
Reservation Inspector, Western Railway, Bombay
Central".
The questions and answers which followed
afterwards were
"Q. Have you heard and followed the Mint
Report read out and explained to you?
Ans. Yes.
Q. What have you to say about the same ?
Ans. I have to say nothing. I want to add
that I am producing the notice given by the
Customs dated 6-10-67"
It is clear to us that the appellant was fully aware of the
nature of the allegations made against him. He had not
merely given a detailed explanation under section 108 of the
Act, of the circumstances in which he’ said he was arrested
with the gold bars, but, he had also filed an elaborate
written statement. He had indicated that this is the only
form in which he would give his explanation. It is true
that the general form of questions put does not strictly
comply with the provisions of Section 342 Criminal Procedure
Code. But, we are unable to hold that the appellant
suffered any injustice for this reason. Indeed, he had not
even raised such a question in the Trial Court or before the
High Court. If he had done so, the alleged defect could
have been easily cured. The objection seems to us to be
most technical and flimsy. The defect could not have
possibly vitiated the conviction of the appellant.
912
Lastly, it is urged that the appellant has already served
nearly three months of the sentence and there is no previous
conviction recorded against him so that we should reduce his
sentence to the period already undergone. In view of the
age of the appellant and the fact that there is no previous
conviction proved against him, we consider it to be
undesirable to send the appellant back to jail for a few
days. We, therefore, reduce the sentence to the period
already undergone. Subject to this modification, this
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appeal is dismissed. The appellant, who is on bail, need
not surrender.
V.P.S. Appeal dismissed.
913