State vs P.G. Chavan

The respondent was the accused in the Court below and was tried by the learned Chief Presidency Magistrate, Bombay, for offences punishable u/s 135(b) read with Section 135(1) of the customs Act, 1962; under Rule 126-P sub-rule (1)(i) read with Rule 126-P(1)(i) of the Defence of India (Amendment) Rules and lastly under Rule 126-P(1)(10) of the Defence of India (Amendment) Rules read Rule 126-P sub-rule 2(ii) of the Defence of India Rules for being in possession of 125, slabs of foreign gold weighing 14580 gms. It was the case of the Prosecution that on receipt of information, a room situated under the staircase of house No. 86, known as Hukumchand House, 11, Cavel Street, Cross Lane, Bombay, was searched in the presence of the panchas and 125 slabs of contraband foreign gold were recovered from the room and attached under the panchanama Exhibit G.

The defence of the accused was that the room in question was not in his exclusive possession and he was not answerable for the contraband gold found therein. His suggestion was that 2 or 3 servants were residing and making use of that room and he was not aware of the existence of the slabs of gold seized by the Customs Officials.

On consideration of the evidence in the case, the learned Presidency Magistrate also took the view that the room in question was not found to be in the exclusive occupation of the accused and, therefore, he could not be said to be in conscious possession of the contraband gold in question. He, therefore, acquitted and accused of all the charges levelled against him and against that order of acquittal, the State has come to this Court in appeal.

The submission of Mr. Kanade, appearing on behalf of the State was that there was good evidence in the case to warrant the conclusion that the gold in question must have been in the conscious possession of this Accused. After having carefully examined the entire evidence in the case, I am unable to accept this submission.

Evidence in this case consists of Lawrence Vaz, Deputy Superintendent of Central Excise, Bombay; Rent Collector, namely, Shivraj Rameshwar Pande, P.W. No. 2 and the Panch witness Takatmal Uttamchand Purohit, P.W. No. 3. Although the Rent Collector was examined in the Court with a view to establish that the room in question was in the exclusive occupation of this accused, his evidence shows that he was not in a position to say who was living in the room under the staircase in March 1964 with which we are concerned. His admissions on the other hand are that wherever in the past he had occasion to visit the room, he also found 2 or 3 other domestic servants present there. His evidence, therefore, if anything, shows that the room could not possible be said to be in the exclusive occupation of this accused.

Although Mr. Lawrence Vaz and panch Takatmal Uttamchand Purohit was us to believe that the room bore a lock at the time of the raid and the key of that lock was produced by this accused, this important fact has nowhere been mentioned in the panchanama at exhibit G. It is impossible to believe that an important fact like this could conveniently be omitted from the panchanama which was supposed to be a contemporary record of the important event which occurred at the time of the raid. This is not the only difficulty in the way of the prosecution. The other difficulty is that the key which the accused is alleged to have produced and with the aid of which the Customs officers succeeded in recovering a huge quantity of gold was not attached under the panchanama and was not produced in the Court below. Under these circumstances, it is difficult to accept with confidence the averments of Mr. Lawrence Vaz and Panch Takatmal Uttamchand Purohit that the key of the room was in fact produced by this accused. If the story about the production of the key by the accused is left out of consideration, it is difficult to hold that the room in question was in his exclusive possession. The learned Magistrate was not impressed by the testimony of the panch witnesses and there is, I think, some reason for saying that he is on friendly terms with the Customs officer and that is why they went all the way in search of him to his Kalbadevi Officer and brought him for a raid in the locality in which the house in question was situated.

On the whole the view taken by the learned Presidency Magistrate, is, I think, sufficiently supported by the materials on record and probabilities of the case. The order of acquittal passed by the learned Presidency Magistrate is consequently confirmed and this State appeal is dismissed. The accused shall be set at liberty forthwith.