Assistant Collector of Customs vs Rohit Kumar and Kapil Mehra

A.P. Chowdhri, J.—Rohit Kumar (22) and his elder brother Kapil Mehra (28) were tried by the Chief Judicial Magistrate, Amritsar, for offences u/s 135 of the Customs Act, 1962, and Section 85 of the Gold (Control) Act, 1968. By judgment dated November 10,1984, both the accused were convicted and sentenced to rigorous imprisonment for 15 months and a fine of Rs. 1,500/- and in default to rigorous imprisonment for three months under the first count, and further convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 1,500/- and in default to rigorous imprisonment under the second count. Both the substantive sentences were ordered to run concurrently. The accused preferred an appeal before the Sessions Judge. The appeal was accepted by the Additional Sessions Judge, Amritsar, by his order dated January 14,1986, and both the accused were acquitted. Aggrieved by the acquittal, the Assistant Collector, Customs, has preferred this appeal.

According to the prosecution, secret information was received by the Preventive Staff of the Customs Department on February 6, 1981, that the accused were proceeding with smuggled gold of foreign origin. A raiding party led by J.R. Bhalla, Superintendent (Preventive) (PW-2), Piara Singh, Inspector, Customs (PW-1), five other Inspectors of the Customs Department and Gian Chand, driver of the vehicle, was formed. The party reached Railway Station, Amritsar, on platform No. 3, where Tata Express was due to leave. The members of the party fanned out and started looking for the accused. On getting scent that the Preventive Staff was looking for them, the accused persons tried to escape. They were chased and apprehended at platform No. 3. The accused Rohit Kumar was carrying in his hand an attache-case Exhibit P-l. He also had in his possession one second class joint ticket No. 3154 for two berths Nos. 68 and 71 for Amritsar to Coimbatore by the Tata Express. On a key provided by Rohit Kumar the attache-case was opened and from a hidden cavity constructed in the base of the attachecase, 16 gold biscuits Exhibits P-2 to P-17 wrapped in old newspapers weighing 10 tollas each i.e. total of 160 tollas valuing about Rs. 3 lakhs were recovered. The search of the bag carried by the other accused Kapil Mehra yielded nothing incriminating. Recovery memo. Exhibit PA was prepared. A panchnama Exhibit PB was also drawn up. It was signed inter alia by the accused persons. The accused were unable to produce any valid authorisation for the possession of the aforesaid gold. After obtaining sanction Exhibit PD, complaint Exhibit PC was made, on which both the accused were summoned and tried.

At the trial, the complainant examined Inspector Piara Singh (PW-1), J.R. Bhalla, Superintendent (Preventive) (PW-2) and also relied on the statements Exhibit PF made by Rohit Kumar accused and Exhibit PH made by Kapil Mehra. In their statements, the accused admitted having been found in possession of gold biscuits with foreign marking in the circumstances mentioned while giving the prosecution version.

The plea of the accused was one of denial and false implication. The accused examined Rajinder Kumar (DW-1) and Ajay Kumar (DW-2) in defence. Both the defence witnesses stated that nothing incriminating was recovered from the accused when their search was taken by the Customs Authorities. Rajinder Kumar (DW-1) ad- mitted that he knew English language and that the recovery memo. Exhibit PA bore his signature as also the panchnama Exhibit PR. He, however, denied that he was deposing falsely at the instance of the accused.

The learned Trial Court repelled the contentions advanced on behalf of the accused and convicted and sentenced them. The lower appellate Court relying on Rajendar Kumar v. The State, AIR 1966 Allahabad 42, held that an officer who performed police functions of investigation and arrest would be a police officer for the purposes of Section 25 of the Evidence Act and a confession made by the accused before such an officer would be excluded u/s 25 of the Evidence Act. It may be added that this was a case in which the accused had made a confessional statement before the Superintendent, Central Excise. It was, therefore, held that the confessional statements made by the two accused stood excluded. It was further held that in the absence of evidence having been produced by the prosecution to establish that what was recovered was gold, the accused could not be held guilty. It was also observed that the existence of foreign markings did not indicate that what was recovered was gold of foreign origin. In this view of the matter, the appeal against conviction was allowed.

Shri Hira Lal Sibal, Senior Advocate, learned Counsel for the accused has put forward two contentions. He first submitted that the burden of proof to prove the facts remains on the prosecution and unless it was established by satisfactory evidence that what was required was gold, the presumption referred to in Section 123 of the Customs Act did not arise. His second submission is that there was no case made out against the co-accused Kapil Kumar and he could not be convicted merely because he happened to be travelling with the other accused and was related to him. In support of his submission, learned Counsel relied on Central Excise Department Vs. P. Somasundaram, and V.P. Syed Mohammed Vs. Assistant Collector of Central Excise, . In both these decisions, which were rendered by a Division Bench of the Karnataka High Court and a learned Single Judge of Kerala High Court respectively, it was held that the burden is on the prosecution to prove that what has been seized from the accused is gold. Learned Counsel emphasized the fact that in the instant case the prosecution had not led any evidence of an expert to prove that what was recovered from the accused was gold. Learned Counsel also referred to Assistant Collector Customs and Another Vs. Mukbujusein Ibrahim Pirjada, for the proposition that the presumption u/s 123 of the Customs Act is not available where the prosecution case is based on the mere confessional statement of the accused.

The contention of Shri H.S. Giani, learned Counsel for the appellant, on the other hand, is that there was sufficient material on the record to warrant the conclusion that the authorities under the Customs Act had reasonable belief that what was recovered from the accused was smuggled gold and, therefore, in terms of Section 123 of the Customs Act, the burden shifted to the accused and the lower appellate Court was not justified in interfering in the order recorded by the Trial Court. Learned Counsel further contended that the statement made before the Customs Authorities by the accused was not rendered inadmissible u/s 25 of the Evidence Act and the law on this point stood settled in Romesh Chandra Mehta Vs. State of West Bengal, . He, therefore, contended that reliance of the lower appellate Court on an earlier decision of the Allahabad High Court in Rajendra Kumar''s case (supra) was of no avail to the accused.

We have carefully considered the respective contentions of the learned Counsel.

We may at the outset refer to a special provision with regard to burden of proof given in Section 123 of the Customs Act, 1962. It reads as follows:-

"123. Burden of proof in certain cases:-

(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 seized.

(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 the Official Gazette specify."

The observations of the Supreme Court in State of Gujarat Vs. Mohanlal Jitamalji Porwal and Another, are very instructive. It was observed : Whether or not the official concerned had seized the article in the "reasonable belief that the goods were smuggled goods is not a question on which the Court can sit in appeal. The law to this effect has been declared in no ambiguous terms in Pukhraj Vs. D.R. Kohli, Supreme Court had administered the caution to the Courts not to sit in appeal in regard to this question and has observed that if prima facie there are grounds to justify the belief, the Courts have to accept the officer''s belief regardless of the fact whether the Court of its own might or might not have entertained the same belief. It was further observed that whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an overindulgent eye which sees no evil anywhere within the range of its eye-sight. It was added that the circumstances have to be viewed from the experienced eye of the officer who is well-equipped to interpret the suspicious circumstances as to form a reasonable belief in the light of the said circumstances.

In State of Maharashtra Vs. Natwarlal Damodardas Soni, it was held that even in cases where Section 123(1) of the Customs Act is not attracted, the prosecution can discharge its burden by establishing circumstances from which a prudent man, acting prudently, may infer that in all probability the goods in question were smuggled goods, and the accused had the requisite guilty knowledge in respect thereof. The incriminating circumstances in the facts of the case in hand are that there was a prior secret information against the accused [See Mohanlal Jitamalji''s case (supra)]. The gold biscuits in question bore foreign markings which proclaimed their foreign origin. The gold was of 24 carrat purity which was not available in India at the material time. The gold biscuits were found concealed in a specially constructed cavity in the base of the attache-case. The gold was in the shape of gold biscuits and was of a huge value, which at the then prevailing market rate was Rs. 3 lakhs [See Natwarlal Damodardass Soni''s case (supra)].

Coming to the facts of the present case, J.R. Bhalla, Superintendent (Preventive) and Inspector Piara Singh described the biscuits recovered to be gold biscuits. They described the seized goods to be gold biscuits. They have foreign markings. The recovery memo as well as the Panchnama were signed by the accused. The accused admitted in their statements, to which reference has already been made, that the incriminating gold biscuits were recovered from Rohit Kumar. It has also been seen that the statement made by the accused before the Customs Authorities is not excluded u/s 25 of the Evidence Act and the law in this behalf if settled by their Lordships of the Supreme Court in Ramesh Chandra Mehta''s case (supra) and Harbansingh Sardar Lenasingh and Another Vs. The State of Maharashtra and Others, . In the last mentioned authority, it was also held by their Lordships of the Supreme Court that such a confessional statement is not hit by Article 20(3) of the Constitution of India. There was no reason, even remotely suggested, that the aforesaid official witnesses had any axe to grind or why they would let off the real culprit and plant the huge quantity of gold on Rohit Kumar accused. The fairness of the whole operation is evident from the fact that while recovery was alleged against Rohit Kumar, no incriminating article was recovered from his brother Kapil Mehra.

For the reasons discussed above, we find that the reasoning of the lower appellate Court cannot be sustained. It is not consistent with the law expounded by the apex Court, to which reference has been made in the earlier part of this judgment. We are further of the view that the confessional statement made by Rohit Kumar accused coupled with the special rule contained in Section 123 and the facts and circumstances of the present case clearly brought home the charge against the accused Rohit Kumar.

The case against Kapil Mehra is, however, distinguishable. Admittedly, no incriminating article was recovered from his possession. He is not liable simply because he was travelling with the co-accused or because he was his brother. There is nothing to establish that Kapil Mehra was in conscious possession of the smuggled gold.

For the reasons discussed above, the appeal is partly allowed. The acquittal of Rohit Kumar is set aside. He is convicted u/s 135 of the Customs Act and Section 85 of the Gold (Control) Act. He is awarded the same sentence which was awarded to him by the Trial Court, namely, rigorous imprisonment for one year and three months and fine of Rs. 1,500/- and in default to rigorous imprisonment for three months u/s 135 of the Customs Act, and further rigorous imprisonment for one year and fine of Rs. 1,500/- and in default to rigorous imprisonment for three months u/s 85 of the Gold (Control) Act. The substantive sentences shall, however, run concurrently. The appeal against Kapil Mehra is dismissed. Rohit Kumar accused shall be got arrested to serve out the above-mentioned sentence.