Full Judgment Text
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PETITIONER:
SEVANTILAL KARSONDAS MODI
Vs.
RESPONDENT:
STATE OF MAHARASHTRA & ANOTHER
DATE OF JUDGMENT30/01/1979
BENCH:
KOSHAL, A.D.
BENCH:
KOSHAL, A.D.
FAZALALI, SYED MURTAZA
CITATION:
1979 AIR 705 1979 SCR (2)1160
1979 SCC (2) 58
ACT:
Evidence Act 1972 (1 of 1872)-S. 24-Accused alleged
that he was assaulted by Customs Officials-No direct
evidence available-Surrounding circumstances-If could be
taken into account-Customs Officials whether person in
authority-Confession made to customs officials if admissible
in evidence.
HEADNOTE:
On receipt of information that smuggled gold was stored
in it, a large number of senior officials of the Customs
Department surrounded the flat belonging to the brother-in-
law of the appellant and started searching it. According to
the prosecution, while the search was on, the appellant was
found peeping from outside through the grille forming part
of the flat, and started running away, on seeing that the
search was being carried on in the flat. He was chased by
the Customs Staff and caught. Later his confession was
recorded. Along with the appellant several other persons had
also been tried for the same offence. The trial court
convicted and sentenced the appellant of an offence under s.
120B IPC read with s. 135(1)(a) of the Customs Act.
On appeal the High Court found that the charge under s.
135(1)(a) and (b) of the Customs Act was not sustainable but
holding that the offence under other heads was proved, it
upheld the appellant’s conviction and sentence.
It was contended on behalf of the appellant that the
confession was the result of an assault on him by the
Customs Officials, which not being voluntary was
inadmissible in evidence under s. 24 of the Evidence Act.
Allowing the appeal.
^
HELD: 1. (i) It is unsafe to regard the appellant’s
confession as voluntary and therefore trustworthy. The
concerned Customs Officials were "persons in authority"
within the meaning of that expression used in s. 24 of the
Evidence Act. The confession may well have been obtained in
a manner which would bring it within the ambit of s. 24 of
the Evidence Act. The appellant has been able to prove the
existence of circumstances which make it highly probable
that his confession is hit by the mandate in section 24.
[1169H-1170A, 1166C]
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(ii) Although there is no direct evidence that force
was used on the appellant to extract a confession the
surrounding circumstances prevalent at the relevant time in
the Customs House where the statement was recorded indicate
that all was not well with the manner in which the
interrogation of various accused was being carried on. They
indicate that the Customs Officials did not stick to ethical
standards in the performance of their duties and exhibited
much zeal in bringing the captives to book and had
transgressed the limit set by law. [1166E, 1169B]
(iii) One of the accused in this case was found to have
seven injuries on his person. The stand of that accused that
he was coerced into making a confession, received support
from the testimony of the doctor who examined
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him so that the probability appears to be that the accused
received his injuries on the hands of the Customs staff. In
the absence of an explanation of the prosecution as to the
situation in which he was beaten, it is reasonable to
presume that the stand taken by him was correct and that the
injuries were inflicted as a measure of coercion adopted to
secure his confession. Taking these circumstances into
consideration, it is unsafe to regard the appellants
confession too as voluntary.[1166F, 1168C, 1169G]
Besides, the plea that he had been coerced into making
the confession was taken at the earliest opportunity i.e. on
the day following his release from custody on bail. [1169D]
2. Being a close relation of the owner of the flat, the
appellant was perhaps sharing the flat with him and so had
duplicate set of keys; his brother-in-law might have given
the Bandi found on the appellant not for the purpose of
carrying the gold but just for use as an ordinary raiment.
It is also possible that the appellant became nervous, that
he thought that he would be implicated in the crime and
therefore, might have started running away on seeing the
Customs Officers in the house. Therefore, these factors on
which the High Court relied for sustaining his conviction
cannot be regarded as incriminating circumstances. [1165F-
1166A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
196 of 1973.
Appeal by Special Leave from the Judgment and Order
dated 7-8-1973 of the Bombay High Court in Criminal Appeal
No. 222 of 1970.
S. B. Bhasme, P. G. Gokhale and B. R. Agarwala for the
Appellant.
M. K. Ramamurthi, M. N. Shroff, Mrs. Hemanlaika Wahi
for the Respondent No. 1.
R. N. Sachthey for Respondent No. 2.
The Judgment of the Court was delivered by
KOSHAL, J.-This appeal by special leave is directed
against the judgment dated 7th August 1973 of the Bombay
High Court upholding the conviction of Sevantilal Karsondas
Modi (the sole appellant before us) for an offence under
section 120-B of the Indian Penal Code read with clauses (a)
and (b) of sub-section (1) of section 135 of the Customs Act
1962, and a sentence of rigorous imprisonment for a year
recorded by the Chief Presidency Magistrate, Bombay.
2. The appellant was one of 30 accused persons against
whom the police initiated proceedings in the court of the
trial Magistrate. Out of them, accused Nos. 28 to 30 were
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not tried as they had absconded and could not be
apprehended. The case against accused Nos. 18 and 19 was
allowed to be withdrawn by the learned Magistrate on an
application made by the Public Prosecutor under section
1162
494 of the Code of Criminal Procedure. Accused Nos. 14, 24,
25, 26 and 27 were discharged by the learned Magistrate for
want of evidence against them. Charges were framed by him on
10 counts against the other 20 accused who were tried in
consequence. At the trial, 266 witnesses were examined in
support of the prosecution case and 6 in defence. Accused
Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result
of the trial, while 13 of those charged were convicted and
sentenced to various terms of imprisonment. All the 13 last
mentioned went up in appeal to the High Court who acquitted
accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be
the appellant before us. He was convicted and sentenced by
the learned Magistrate as aforesaid and also on a separate
charge for an offence, under clauses (a) and (b) of sub-
section (1) of section 135 of the Customs Act and sentenced
to rigorous imprisonment for six months in consequence. His
conviction on that charge, however, was set aside by the
High Court, against whose judgment, as already stated,
special leave to appeal was granted to him by this Court.
3. The prosecution case in so far as it is relevant for
the purpose of this appeal may be briefly stated. V. K.
Asthana, (P.W. 228) who was then the Deputy Director in the
Directorate of Revenue Intelligence in the Department of
Customs at Bombay and is hereinafter referred to as
’Asthana’, received information in the first half of
September 1966 to the effect that flat No. 2 forming part of
the building known as Sagar Mandir and situated in that
locality of Bombay which is called ’Shivaji Park’ was being
used for storage of smuggled gold and disbursement thereof
to its purchasers. After the flat had been kept under watch
for a few days by some officials of the Department, a
decision was taken by Asthana to raid the premises. The
raiding party which consisted of senior Customs officers,
took positions in the vicinity of Sagar Mandir on the
morning of 14th September 1966. They included B.M. Sevalia,
Preventive Officer, Bombay Customs (P.W. 7 and hereinafter
referred to as ’Sevalia’), G. N. Alreja, Preventive Officer,
Bombay Customs (P.W. 34 and hereinafter mentioned as
’Alreja), P. G. N. Ayengar, Appraiser in the Directorate of
Revenue Intelligence (P.W. 144 and hereinafter called
’Ayengar’) and D.G. Mugwe, Principal Appraiser in the said
Directorate (P.W. 152 and hereinafter referred to as
’Mugwe’). Sevalia was deputed to watch the movements of
persons entering the flat and to give a signal on the
arrival of the suspects. At about 8.50 A.M., accused No. 12
was seen entering the flat and Sevlalia alerted the other
members of the raiding party by giving the agreed signal.
Half an hour later, a car stopped at the entrance to the
compound of the building and
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accused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5
went towards the concerned flat but got suspicious on
noticing the presence of strangers near the entrance. He
turned back and so did his two companions. All three of them
took to their heels but were caught by the raiding party on
a direction by Mugwe. Accused No. 12 was found inside the
flat. The person of each one of accused Nos. 5, 6 and 7 was
searched and yielded 200 slabs of gold weighing 10 tolas
each. All the slabs bore foreign markings and were contained
in jackets having long pockets and worn by each of the
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captives. Bunches of keys exhibits K-4, K-5 and K-6 and a
diary containing accounts exhibit ’O’ were found lying in
the passage forming part of the flat. Bandi exhibit J-2 was
secured from a room of the flat. A search of the person of
accused No. 12 yielded keys exhibit K-2, which fitted the
locks used in the flat, and sheets of accounts exhibit ’S’.
While the search was going on, accused No. 13 was found
peeping from outside through a grille forming part of the
flat but started running away on seeing what was happening
inside. He was chased and captured and two keys were seized
from his person. One of them was found to fit the lock on
the outer door of the flat and the other to fit the latch
therein. He was also found wearing a bandi similar to bandi
exhibit J-2. At his instance four slabs of gold and 10 gold
bangles, each weighing 10 tolas, were recovered from
underneath the mattress lying on a bed in the flat.
Accused Nos. 5 to 7 and 13 were interrogated by the
Customs officials. The statement of accused No. 13 exhibit
Z-383 was recorded by Ayengar on the 15th of September 1966.
In that statement, the appellant gave an exhaustive account
of the circumstances in which he happened to come to Bombay
and made his services available to the principal accused
named J. K. Shah. The long and short of the statement may be
summarised thus:
One day J. K. Shah called accused No. 13, gave him
some cloth and sent him in the company of one Goverdhan
Das to have the cloth tailored into bandis of a special
type having two wide and long pockets in the front. The
cloth supplied was thick and strong. A few days after
the bandis were ready, accused No. 13 was taken to the
flat in question by his sister’s husband, named
Natwarlal (accused No. 12) or by accused No. 15.
Thereafter accused No. 13 visited the flat several
times when he would receive bandis containing gold
brought from outside and store them in the flat or
would remove such bandis from the flat to other
1164
places in town. J. K. Shah had given him keys of the
flat. Whatever gold was removed by him from the flat,
was either deposited by him in a room on the second
floor of a building situated in Modi Street or
delivered to J. K. Shah in the latter’s office on the
3rd floor of building No. 111 situated in Tambakanta.
The room in Modi Street had a telephone the number
whereof was 262283 and a key of this room was supplied
to him by J. K. Shah. He used to receive orders either
from J. K. Shah or from accused No. 15 to go to the
flat in Sagar Mandir and receive the gold there. He
received gold in this way on the 12th and 13th of
September 1966. On the day of his capture he was in the
room in Modi Street when he received a telephone call
from J. K. Shah at 11 or 11.15 A.M. requiring him to
visit the flat in Sagar Mandir and find out if any
trouble was brewing and that if that was so, J. K. Shah
was to be informed on the telephone. Accused No. 13
rushed to Sagar Mandir in a taxi and tried to find out
from outside if there was anything wrong. For that
purpose he looked through a broken ventilator. While he
was coming towards the road on the beach nearby he was
detained and was taken inside the building.
While the above statement was being recorded, accused
Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as
the persons from whom he used to receive gold at Sagar
Mandir.
4. The evidence relied upon by the prosecution against
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accused No. 13 may be split up under the following heads:
(a) He was seen visiting the flat in Sagar Mandir
on the 8th, 9th and 13th September 1966 by
the Customs officials who were watching the
premises under the orders of Mugwe.
(b) He was peeping into flat No. 13 between 11
A.M. and 12 noon on the 14th of September
1966.
(c) When he found that the flat was under search
by officers belonging to the Customs
Department, he tried to run away.
(d) He was found in possession of keys fitting
the locks of the flat.
(e) He was wearing a bandi similar to bandi
exhibit J-2 which is a special type of bandi
suitable for carrying gold slabs secretly.
1165
(f) 4 slabs of gold and 10 gold bangles were
recovered from underneath the mattress at his
instance.
(g) The confession made by him and contained in
statement exhibit Z-383.
The learned trial Magistrate found all the above heads
to have been established and that is why he convicted and
sentenced accused No. 13 on two counts. The High Court took
a different view in relation to heads (a) and (f). It was of
the opinion that the identification of accused No. 13 by the
Customs officials on the 8th, 9th and 13th of September 1966
could not safely be relied upon as they had seen people
coming into and going out the Sagar Mandir only from a
distance and for very short periods of time so that their
view of such people could possibly be mere "fleeting
glances". It further held the alleged recovery of four gold
slabs and 10 gold bangles to be unreliable as the marginal
witness to the recovery memo who was produced in court by
the prosecution did not support it and stated that he had
not seen accused No. 13 pointing out the slabs and the
bangles. The High Court concluded therefore that the charge
under clauses (a) and (b) of sub-section (1) of section 135
of the Customs Act was not sustainable. However it found the
other heads of evidence proved and on the basis thereof
upheld the conviction and sentence in relation to the charge
of conspiracy to commit the other offences just above
described.
5. After hearing learned counsel for the parties at
length we find ourselves unable to uphold the impugned
judgment in so far as accused No. 13 is concerned. The
circumstances that he was found peeping into the flat, that
he tried to run away on seeing the Customs officials
searching the premises, that he was in possession of
duplicate keys of the flat and that he was found wearing a
bandi similar to bandi exhibit J-2 are not incompatible with
his innocence. He was a close relation of accused No. 12 who
has been found to the person really incharge of the flat and
it would thus be natural for him (accused No. 13) to share
the flat with the permission of accused No. 12. In so living
with his brother-in-law he may have been given to wear the
bandi found on his person not for the purpose of carrying
gold but just for use as ordinary raiment. Again, in a city
like Bombay it is not unusual for persons sharing a
particular accommodation to be provided with separate sets
of keys for each in order to facilitate ingress or egress at
will. Further, an innocent man finding his premises being
watched by persons in authority may well feel funky at the
prospect of a false implication on the basis of a mere
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1166
suspicion (which may or may not be well-founded and may try
to make himself scarce. Without more, the circumstances
covered by heads (b), (c), (d), and (e), therefore, cannot
be regarded as incriminating circumstances. So the
conviction really rests on the confession attributed to the
appellant. If it is found to be voluntary and true it may
receive some support from the four heads of evidence just
above described. If, on the other hand, the confession
appears to be either untrue in any material particular or
having been caused by any inducement, threat or promise such
as is described in section 24 of the Evidence Act, it must
fall and with it fall the other heads of evidence, leaving
no material to support the conviction. As it is, we find
that the appellant has been able to prove the existence of
circumstances which make it highly probable that his
confession is hit by the mandate in section 24 above
mentioned. Our reasons for coming to this conclusion follow.
6. The case set up by accused No. 13 in so far as his
confession is concerned, mainly consists of a plea that it
was the result of an assault on him by the Customs officers
including Ayengar and Sevalia and that the latter had forced
him into making an endorsement in his own hand-writing under
the confessional statement to the effect that statement was
voluntary and had been explained to him by Sevalia.
Naturally, the story of the assault has been stoutly denied
by Ayengar and Sevalia; but then the circumstances
prevailing at the relevant time in the Customs House where
the statement was recorded definitely indicate that all was
not well with the manner in which the interrogation of
various accused was being carried on. In this connection the
outstanding feature of the situation is the fact that
accused No. 15 when examined by Dr. S. R. Joglekar (D.W.I.)
on the 16th September 1966 at 6.15 P.M. was found to have on
his person seven injuries which the doctor has described
thus:
"(1) Ecchymosis below right eye, outer part,
1/2"x1/3". blackish colour.
(2) Ecchymosis below left eye, middle, 1/4"X1/4"
blackish colour.
(3) diffused contused area, 21/2"X3", on right
thigh, upper part.
(4) Contused area on right buttock, 3" x 2",
lower part, wheal (?) marks seen.
(5) diffused contused area on left thigh, back
and outer part, 5" X 2", wheal (?) marks seen
transverse.
1167
(6) Transverse wheal (?) marks on back of left
knee.
(7) Contused area on back of left leg, 2" X 1".
According to the doctor, these injuries appeared to
have been caused two to four days earlier. Admittedly
accused No. 15 was apprehended by the Customs staff on the
14th September 1966. No explanation whatsoever is offered
for his injuries by the prosecution but the stand taken by
accused No. 15 himself in this behalf may be stated in his
own words
"At that time, there were six Customs Officers
around me. In the gallery, I was again shown the 4
keys. I was again asked about the said keys and I had
again given the same reply. The said officers on
hearing this, get enraged and began to say that I was
stating falsehoods. One of the officers then asked me
to take out my clothes. I had then worn one under wear
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and a pant and one bush-coat and a ganji. I was then
asked to remove my pant as well as my underwear by the
said officer and I did so accordingly against my will.
That officer then ordered me to sit in the position of
"a chair". I was so asked to sit like a chair without
the support of a wall even to my back. The six officers
were then standing around me at that time. After making
me to sit in that chair position they began to ask me
about the said keys. I had again given the same reply
about the said keys. If I moved a little from the
position of a chair given to me, I was kicked by all
the officers immediately. I was able to sit in that
position for 4-5 minutes. I used to fall down
thereafter. I used to be kicked therefor, made to stand
again and asked to resume the same position. In this
way, I had fallen and had been assaulted again and
again by the said officers for about an hour or so.
While I was so being questioned and made to sit in that
position again and again, one of the officers had gone
out and had returned with a ruler in hand having a
round shape. As I was made to sit in that position of a
chair, I often used to move therefrom, the officers
immediately used to assault me and I used to get up
thereby. Out of the Custom Officers the officer who had
the ruler in his hand used to assault me therewith, and
the other officers used to assault me with kicks. I had
been assaulted with that ruler on my left buttock, on
my right buttock, on the back portion of the calf of my
left, leg, on my right thigh, on the backside of my
both legs etc.
1168
I had received injuries at all these places stated by
me above and as a result of this assault on me, I could
not even stand up. Throughout the assault; I was being
questioned again and again about the said keys by all
the said officers and at every time I was stating that
I did not know anything more about the same. Thereafter
I had fallen down on the ground with my face towards
the ground. All the said six officers then went away."
This stand may not be devoid of exaggeration and
embellishment but it receives great support from the
testimony of Dr. Joglekar (D.W.I.) so that the probability
appears to be that accused No. 15 received his injuries at
the hands of the Customs staff and there being no
explanation on the part of prosecution as to the situation
in which he was beaten, it is reasonable to presume that the
stand taken by him is correct and that the injuries were
inflicted on him as a measure of coercion adopted to secure
his confession.
In coming to a contrary conclusion, the High Court was
mainly influenced by the fact that although accused No. 15
had filed a complaint in court against the concerned
officers of the Department of Customs, he did not prosecute
it but had it dismissed for default. The High Court observed
in this connection:
"The only explanation for this unusual attitude
offered by him to the Court is that he was afraid of
vindicative attitude from the officers. We have not
been able to conceive how officers could have adopted
any vindicative attitude, when accused No. 15 was not
concerned with any offence. Be that as it may, the fact
remains that the complaint was not prosecuted and the
evidence was recorded behind the back of the officers.
It is not possible to hold on the present material that
assaulting by the officers was for the purposes of
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extorting some confession and such assault alone was
the cause of the injuries received by him. Beyond,
therefore, creating a fog of suspicion, the injuries
proved to have been caused to accused No. 15, cannot
indicate that all the accused were subjected to
torture, assault and pressure for giving statements to
the liking of officers or compelling them to sign the
prepared statements."
We do not appreciate this approach to the determination
of the voluntary nature of the confession of accused No. 15.
As we have already pointed out, the time of infliction of
injuries coincided with the day on which accused No. 15 was
apprehended and his confession was recorded. In this
situation it was the imperative duty of the
1169
prosecution to explain the circumstances in which it became
necessary for force to be used by the Customs staff on the
person of accused No. 15 and in the absence of any such
explanation there is no reason why his plea should not be
taken at its face value.
7. We are of course not directly concerned with the
voluntary nature of the confession of accused No. 15 in this
appeal but the circumstances discussed in the last paragraph
indicate that the Custom of officials did not stick to
ethical standards in the performance of their duties and, on
the other hand, exhibited such a zeal in bringing the
captives to book as transgressed the limits set thereon by
law. We have already alluded to the fact that the High Court
itself did not regard the recovery of four gold slabs and 10
gold bangles alleged to have been made at the instance of
accused No. 13 to be trustworthy. Besides, the plea of
accused No. 13 that he was coerced into making the
confession was taken at the earliest opportunity, i.e., on
the 20th of September 1966 which was the day next to that of
his release from custody on bail. That plea is contained in
letter exhibit 29 addressed by him on that date to the
Additional Collector of Customs, Bombay, which contained the
following averments:-
"From the 14th instant at 12 noon till about 3
p.m. I was locked up along in one room with some
Customs Officers who continuously interrogated me,
threatened and physically assaulted me to make and sign
a statement prepared by them after ascertaining a few
personal questions from me pertaining to my family and
myself. I was not allowed to sleep during the entire
night of the 14th/15th and was not allowed to see any
person. The statement was written out by the officers
themselves in English language and it was not explained
to me and my signature was obtained which I have signed
in Gujarathi. As a result of this threat, coercion and
complete exhaustion, I had no alternative but to sign
the statement after which only I was allowed to rest."
Taking note of these circumstances we would consider it
extremely unsafe to regard the confession exhibit Z-383
signed by the appellant as having been made by him
voluntarily and therefore trustworthy. The appellant, in our
opinion, has shown the existence of circumstances which make
it appear to the Court that the confession may well have
been obtained in a manner which would bring it within the
ambit
1170
of section 24 of the Evidence Act, it being undisputed that
the concerned officers of the Department of Customs were
"persons in authority" within the meaning of that expression
as used in the section.
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8. In the result the appeal succeeds and is accepted.
The judgment of the High Court is reversed, the conviction
recorded against and the sentence imposed upon the appellant
by the learned trial Magistrate and upheld by the High Court
are set aside and he is acquitted of the charge in its
entirety.
N.V.K. Appeal allowed.
1171