Full Judgment Text
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PETITIONER:
DEVCHAND KALYAN TANDEL ETC.
Vs.
RESPONDENT:
STATE OF GUJARAT & ANR. ETC.
DATE OF JUDGMENT: 08/08/1996
BENCH:
G.B. PATTANAIK (J)
BENCH:
G.B. PATTANAIK (J)
RAMASWAMY, K.
CITATION:
JT 1996 (7) 256 1996 SCALE (5)658
ACT:
HEADNOTE:
JUDGMENT:
THE 8TH DAY OF AUGUST, 1996
Present:
Hon’ble Mr.Justice K.Ramaswamy
Hon’ble Mr.Justice G.B.Pattanaik
K.Madhava Reddy, Sr.Adv. Ms.Lata Krishnamurthy, Adv. with
him for the appellant.
K.T.S.Tulsi, Additional Solicitor Generel, V.K.Verma, Y.P
Mahajan, Vikas Pahwa, and B.N.Babu Chava, Advs. with him for
the Respondents.
J U D G M E N T
The following Judgment of the Court was delivered.
Devchand Kalyan Tandel
V.
State of Gujarat & Anr.
WITH
CRIMINAL APPEAL NOS. 813-14 OF 1996
(Arising out of SLP (Criminal) Nos..2530-31/92)
Jayantilal Govindi Ghotda
V.
Superintendent of Customs
(Legal) & Anr.
J U D G M E N T
PATTNNAIK. J.
Leave granted.
Both these appeals arise out of the same judgment of
the Additional Chief Judicial Magistrate, Valsad dated 7th
of May, 1982 in Criminal Case No. 60 of 1980 and therefore
heard together and are being disposed of by this common
judgment.
On the basis of a complaint filed by the customs
authorities both these appellants stood charged of having
committed the offences under Section. 135(l)(a) of the
Customs Act (hereinafter referred to as the Act’) on the
allegation that on the date of occurrence they were found to
be carrying silver without any transport voucher within the
specified area which is duly notified under Section 11-K of
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the Act. The appellants denied their complicity and pleaded
not guilty. The learned Additional Chief Judicial Magistrate
convicted the appellants under Section 135 of the Act and
sentenced them to undergo six months rigorous imprisonment
and to pay a fine of Rs. 4,000/-, in default, to undergo
further rigorous imprisonment of three months. Against the
aforesaid conviction and sentence of the learned Additional
Chief Judicial Magistrate the appellants preferred appeals
to the court of Sessions and the State also preferred appeal
for enhancement of sentence in the High Court. The customs
authorities who were the complainant also invoked the
revisional jurisdiction of the High Court being aggrieved by
the inadequacy of the sentence. After admission of the
State’s appeal in the High Court, the appeal preferred by
the accused- appellants were ordered to be transferred and
accordingly all the appeals and revision were heard together
and were disposed of by common judgment. The High Court
dismissed the appeal filed by the accused - appellants were
ordered to be transferred and accordingly all the appeals
and revision were heard together and were disposed of by
common judgment. The High Court dismissed the appeals filed
by the accused-appellants and allowed the State’s appeal and
enhanced the sentence of rigorous imprisonment to two years
and fine of Rs. 4,000/- so far as accused No. 2 is concerned
and enhanced the sentence of rigorous imprisonment for two
years and fine of Rs. 40,000/- and in default further
rigorous imprisonment for three months so far as accused No.
3 is concerned. Thus the present appeals by special leave.
The prosecution case in nutshell is that the customs
authorities had received secret information that certain
contraband good were likely to pass through the National
Highway No. 8. The authorities, therefore, kept watch during
the early hours of 5th August, 1973 around the Bhilad
Customs Check Post. At about 8.30 a.m. a fiat car bearing
R.T.O. Registration No. GJN 5953 came from Vapi side and
proceeded towards Bombay side. The car was intercepted by
the vigilance squad of the Customs department but nothing
objectionable was found therefrom. The vehicle was allowed
to pass. The appellant - Devchand Kalyan Tandel, who was
accused no. 2, was one of the occupants in the said fiat
car. The customs authorities thereafter suspected some foul
play and then divided themselves in two groups, one group
was sent on the way to Umbergaon and the other group was
sent on the way to Sarigam. The further prosecution case is
that while the second group was on its vigil, an ambassador
car was found coming from Sanjan. When the vehicle was
signaled to stop. it ignored the signal and proceeded
straight towards Bhilad railway station and from there it
took turn towards the underground bridge. The vigilance
party chased the said car and when they found that the car
is about to reach the National Highway, they took resort to
firing and on hearing the sound of firing, the car stopped.
The said ambassador car bore RTO Registration No. MRH
5042.The car was brought to the customs office at Bulsar and
in presence of two witnesses a search was conducted. On
search. ten silver ingots worth more than Rs. 1,90,000,
weighing 293.300 kilograms were recovered from a secret
cabinet in the hind portion of the car. Appellant - Devchand
and the other accused who is not an appellant namely
Ishwarbhai Gopalbhai Tandel were found to be in the car made
their statements under Section 108 of the Act. After
completion of investigation a complaint was filed in the
Court of learned Additional thief Judicial Magistrate.
Valsad which was registered as Criminal Case No. 60 of 1980.
The accused - appellants stood charged under Section 135(1)
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of the Act. The accused persons pleaded not guilty of the
charge and were accordingly tried, After the prosecution led
evidence to establish the charge against the accused -
appellants. The witnesses were cross - examined by the
accused persons. The statements of the accused persons were
also recorded under Section 313 of the Cr.P.C. and accused
No. 2 appellant - Devchand also examined witnesses, in
defence. The plea of appellant - Devchand is that while he
was proceeding in the fiat car after crossing the customs
check post, the car had a break down and he was therefore
looking for a lift, so that, he can get a mechanic and at
that point of time an ambassador car was found coming, he
therefore, raised his hand requiring the car to stop and the
accused no, 1 who was driving the ambassador car stopped the
same and gave lift and accordingly he did not know about the
alleged transportation of silver ingots in the secret
chamber of the ambassador car. Accused No. 3 though admitted
to have purchased the silver ingots from one Pratapsingh
Dhorda of Pratap and Company but he took the plea that he
had sold the same to his brothers and therefore he has no
role in the transportation of the silver ingots by the
offending ambassador car. The learned trying Magistrate on
consideration of oral and documentary evidence led before
him discarded the plea of the accused persons and came to
hold that the prosecution has been able to establish the
charge beyond reasonable doubt, accordingly he convicted the
accused - appellants and sentenced them as already stated.
The High Court reconsidered the entire evidence and by the
impugned judgment affirmed the conviction passed by learned
trying Magistrate and enhanced the sentence as already
stated. Both the trying Magistrate as well as the High Court
not only relied upon the evidence led by the prosecution but
also relied upon the statutory presumption under Section 138
A of the Act and held that the accused failed to discharge
the burden which lay on them.
Mr. K. Madhava Reddy, learned senior counsel appearing
for the appellants raised the following contentions in
assailing the conviction and sentence :
1) On the facts and circumstances of the case the learned
trying Magistrate as well as the High Court committed
serious error in disbelieving the plea of appellant -
Devchand that his fiat car had a break down and he- has
taken lift in the ambassador car and he had no knowledge of
silver ingots being transported in the ambassador car.
2) The two courts below committed gross error of law in
raising the presumption available under Section 138-A of the
Act. No presumption can be raised unless the prosecution
establishes minimum ingredients of offence under Section
135(1), consequently the judgments of the courts below are
wholly unsustainable in law.
3) In any view of the matter, appellant Devchand having
already been in custody for about 15 months and appellant -
Jayantilal being in custody for about 18 months and the
occurrence in question being of the year 1980, it will not
be just and proper to order for surrender to serve the
balance period of sentence and therefore the courts should
sentence to the period already undergone.
Mr. K.T.S. Tulsi, learned Additional Solicitor General
on the other hand contended that finding it difficult to
check the large scale smuggling as well as violation of the
provisions of the Foreign Exchange Regulation Act, the
Parliament introduced Section 138A of the Customs Act by Act
36 of 1973. While construing the provisions of the Act the
court should bear in mind the legislative intent of the
provision and in cases of economic offences the provisions
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should be construed strictly. It is further contended that
the facts and circumstances as found the High Court
irresistibly point towards the guilt of the accused and this
Court should not interfere with the conviction and sentences
passed by the High Court. It is further urged that in any
view of the matter it would not be appropriate for this
Court to reappreciate the evidence on record.
Before examining the rival contentions at the Bar it
would be appropriate to notice certain undisputed facts as
well as the findings arrived at by the High Court. The
undisputed facts are that the Central Government had issued
the Notification under Section 11 K of the Act prohibiting
transport of silver within the specified area unless
accompanied by transport voucher and the place where the
ambassador car was stopped and silver ingots recovered from
the said ambassador car was within the specified area.
Appellant - Devchand was one of the occupants of the said
car. Said appellant - Devchand earlier had passed through
the customs check post in the fiat car and shortly
thereafter when the ambassador car was intercepted he was
found accompanying therein. Apart from the aforesaid
undisputed facts the High Court on appreciation of evidence
further found that the version of accused Devchand that the
fiat car had a break down near Sanjan looks more fictitious
than real and this version had rightly been rejected by
learned trying Magistrate. The High Court also did not
accept the defence of accused Devchand that he took a lift
in the ambassador car which was being driven by accused No.
1 in view of the inherent contradiction in the version given
by both the accused persons. So far as appellant Jayantilal
is concerned the High Court recorded the finding that the
evidence on record has clearly established his link with the
10 silver ingots recovered from the ambassador car as he was
the last purchaser therefore and the Prohibited goods
recovered from the ambassador car on the 5th of August,
1973 belonged to the accused no. 3, which has been
established at the trial. We would now examine the
contentions raised by Mr. S. Madhava Reddy, learned senior
counsel for the appellants. So far as the first contention
of Mr. Reddy the learned senior counsel for the appellants
is concerned, the same is in realm of appreciation of
evidence and the two courts below have already appreciated
the evidence on record and have rejected the defence plea of
Devchand that his fiat car broke down and so he was taking a
lift in the ambassador car and as such not aware of the
transportation of silver ingots therein. We have scrutinized
the judgments of the learned trying Magistrate as well as
the High Court and we find no infirmity in either of them in
the matter of appreciation of evidence. We are of the
considered opinion that the said plea of appellant -
Devchand has rightly been rejected. In our view there has
neither been any perversity in the matter of appreciation of
evidence nor any important piece of evidence has been
ignored by the courts below. It is well settled that this
Court usually does not reappreciate the evidence and no
justifiable reasons have been advanced for taking a
different path. Accordingly, the first contention of Mr. K.
Madhava Reddy must be rejected.
So far as second contention of Mr. K. Madhava Reddy is
concerned it depends upon an interpretation of the
provisions of Section 138-A of the Act. For better
appreciation of the point in issue Section 138-A is
extracted hereinbelow in extenso:
138-A. Presumption of culpable
mental state - (1) In any
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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.
Mr. K. Madhava Reddy urged that before the presumption
under section 138-A(1) is attracted the prosecution must
establish the basic ingredients of the offence for which
charge has been framed and in the case in hand, the
necessary ingredients of section 135(1)(a) must be proved
and then only the presumption under section 138-A can be
attracted. According to Mr. Reddy this is apparent from sub-
section (2) of section 138-A of the Act. On a scrutiny of
provisions of the Act particularly Section 138-A thereof and
the object for which the aforesaid provision was inserted
into the statute by Act No. 36 of 1973 it is difficult for
us to accept the contention of Mr. K. Madhava Reddy. It is
no doubt true that in a charge for violation of the
provisions of Section 135(1)(a) it is required for the
prosecution to establish that the accused have fraudulently
evaded or attempted evasion of any duty chargeable on the
goods or that violated the prohibition imposed under. The
Act in respect of the goods. But if the prosecution
establishes the aforesaid facts then there is no necessity
of attracting the statutory presumption under section 138A
and without such presumption an accused can be convicted
under section 135(1)(a)- But the legislature having found it
difficult to establish the necessary ingredients of such
evasion of duty or prohibitions and the economic offences
having grown in proportion beyond the control, came forward
with the presumption available under section 138A of the
Act. The main object of Section 138A is to raise a
presumption as to culpable mental state on the part of the
accused when he is prosecuted in a court of law. In other
words, if a recovery is made from the accused of any
prohibited goods within the notified area then the statutory
presumption would arise that he was knowingly concerned in
the fraudulent evasion or attempted evasion of any duty
chargeable on the goods in question. In the case Bhanabhai
Khalpabhai vs. Collector of Customs and another, 1994 Supp
(2) SCC 143, this Court has held that in view of Section
138-A a presumption has to be drawn in respect of existence
of the alleged mental state. An option has been given to the
accused to prove by way of defence the fact, That he did not
have any such mental state with respect to the act charged
which is an offence. The question, therefore, arises as to
whether in the proved facts and circumstances the courts
below were justified in taking recourse to the statutory
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presumption under section 138A of the Act. The answer must
be in the affirmative. The fact that accused was found to be
inside the vehicle from which the silver ingots were
recovered; the fact that the vehicle did not stop even
though customs authorities signaled for stopping; the fact
that the two courts below disbelieved the plea of accused -
Devchand about the break down of his fiat car and he is
taking a innocent lift by the ambassador car from the secret
pocket of which the silver ingots were recovered; and that
the place from where the recovery was made is undoubtedly a
place within the notified area under Section ll K of the Act
and further that there was no transport voucher as required
under section 11K of the Act, unhesitatingly point towards
the complicity of the accused - Devchand in the commission
of offence under section 135(1) and the presumption under
section 138-A having been rightly attracted. The burden lay
on the accused appellant to establish that either he did not
know about the fact of silver ingots being transported in
the vehicle or that he was in no way connected with the
same. But the accused - Devchand has utterly failed to
discharge the said burden. In our considered opinion the
conviction must be held to be well founded and the sentence
passed thereunder is wholly justified.
So far as the third submission of Mr. K. Madhava Reddy
is concerned it is no doubt true that sufficient time has
elapsed between the date of occurrence and the date of
judgment and further the accused persons have served their
sentences for a major part but yet we do not think that in
such economic offences the courts should take any lenient
view in the matter. Smuggling has become a threat to the
effective fulfillment of the objectives of foreign trade
control. The extent of the leakage of revenue that takes
place through the process of tax evasion cannot be
estimated. It has got serious deleterious effect on
legitimate trade. Taxation Enquiry Commission had suggested
that stringent measures both legal and administrative should
be adopted to minimise the scope of the evil. For the
purpose of achieving the desired objective Parliament came
forward with insertion of Section 138-A into the statute
book. Question of taking a lenient view of the matter,
therefore, does not arise. In view of large scale smuggling
activities in the border area and large scale evasion of
duty the country has faced severe economic imbalance.
Notwithstanding stringent legislation having been made it
has not been possible to eradicate the evil. Any leniency
therefore in economic offences will send a wrong signal. In
this view of the matter, we are- unable to accept the last
contention of Mr. K. Madhava Reddy, the learned senior
counsel for the appellants.
So far as Jayantilal is concerned the prosecution has
been able to establish that the ten silver ingots hold the
mark of Narandas Manordas and accused Jayantilal had
purchased the said silver ingots from the Refinery of
Narandas Manordas. The accused admitted the aforesaid fact
and it was proved beyond reasonable doubt that he was last
purchaser of said silver ingots. His plea that he convered
the ingots into pieces and sold the same to his Brothers
under Exhibits 18 to 72 has not been accepted either by the
trying Magistrate or by the High Court. On elaborate
discussion of the evidence on record the two courts below
have affirmed that accused no. 3 was the owner of the seized
silver ingots which was meant for transportation and illegal
export and he was involved in committing the offence in
question. No convincing argument has been advanced on his
behalf to interfere with the findings and conclusions
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arrived at by the courts below and consequently we do not
find any case warranting interference by this Court has been
made out.
In the net result, therefore, both the appeals are
dismissed. The bail bonds stand cancelled. The appellants
are directed to surrender forthwith to serve the balance
period of sentence.