U.M. Hussain vs State of Maharashtra

Daud, J.—This appeal takes exception to the conviction and sentence recorded against persons arraigned as accused Nos. 8 and 15 before the trial magistrate for their allegedly committing offences punishable u/s 120B of the Indian penal Code, Sections 135(a)(i) and 135(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act.

The prosecution case, shortly stated and to the extent relevant for deciding this appeal, may be stated thus :-

Nathala and Lutha - the first person having been acquitted and the second absconding - masterminded a conspiracy to facilitate the smuggling, landing and disposal of smuggled goods coming from shores beyond India. For this purpose the conspirators had made the Kamal Mansion at Mohamadali Road, Bombay their headquarters. Here, a telephone was installed and Lutha placed one Mansur in charged of keeping track of the planning and execution of the conspiracy. The appellants being accused Nos. 8 and 15 are from Margaon in the State of Goa. They run a hotel in the name and style of ''New Green Hotel'' at Margaon. The said hotel did not have a phone and for that purpose, appellants, who are cousins, were compelled to make use of the telephone installed at a neighbouring hotel being run under the name and style of ''Durga Hotel''. Appellants became members of the conspiracy and had several conferences - whether at Bombay, Margaon or elsewhere - with Nathalal, Lutha and Mansur etc. On several occasions they came to Bombay by air and it was decided that the contraband would be landed on the Karwar coast. This was because the place where the landings used to take place earlier i.e. somewhere near Ahmedabad in the State of Gujarat had become known to the authorities. In between 20-2-1969 and 26-4-1969 as many as four landings of smuggled goods took place in which landings the appellants played a prominent part. They got the goods unloaded, transported and even disposed of the last landing which took place was on 23-4-1969. The goods received and unloaded on that day were detected on 26-4-1969. The Customs Authorities interrogated various persons including Mohammed Hussain (P.W. 28), Sharif (P.W. 26) and Amin (P.W. 27). On the basis of information so received it was clear that appellants had participated in four landings - the goods involved being worth several lacs of Rupees. The investigation completed, appellants along with several others were charge-sheeted.

Appellants pleaded not guilty denying almost all the circumstances appearing in evidence against them. The stand taken by them was that they had been falsely implicated. To substantiate the charge leveled against the appellants and their co-accused, the prosecution examined a large number of witnesses including the three named above. The Magistrate held the appellants guilty of having committed various offences and imposed on them the sentences as under :-

Learned Counsel representing the appellants contends that there was no credible evidence to justify the convictions recorded against the appellants. In any case, the sentence was unduly harsh, and, this made more so, having regard to the passage of time and the subsequent unblemished conduct of the appellants. So far as the first submission is concerned, we agree that Shariff, Amin and Mohammed Hussain are in position of accomplices. Their evidence has to be scrutinised with care and caution. Not only are they subject to the usual test of veracity vis-a-vis all witnesses viz. that what they say should correspond to probable truth, but also that their testimony being that of tainted witnesses can be accepted only if corroborated in vital particulars from independent sources. Bearing these tests in mind we see no infirmity in the Magistrate''s relying upon the three witnesses. That appellants were frequently coming to Bombay by air and on these occasions coming to Kamal Mansion, has been testified to by the witnesses. On several occasions the telephone was used to get into touch with various persons - the principal one being a person named Mansur. The telephone used by appellants was that installed in the Durga Hotel and the owner of that hotel was maintaining a register so as to keep track of the money payable by the appellants for the use of this instrument by them. Nothing has been brought out against the credibility of the owner of Durga Hotel to falsify the record maintained by him in the usual course of business. The appellants were making frequent use of his telephone and as they were paying at the end of the month, it is but proper that the person allowing his instrument to be used maintain a written record of the calls put in by them. The appellants took a conflicting stand vis-a-vis Mansur. At first they professed not to know any such person. This denial was watered down to an inability to recall to the said Mansur of course, the appellants took great care to distance themselves from one of the accused name Mansur who was tried along with them. Even if it be assumed that no connection between the said Mansur and the appellants is established, what remains unshaken is the testimony of Amin, Sharif and Mohammed Hussain about conferences and confabulations taking place between appellants on the one hand and those participating in the conspiracy on the other. As many as four landings took place in between the last week of February and the last week of April both of 1969. These have also been spoken of by the accomplices. It is not that the accomplices depict themselves as innocent or people led astray by the evil counsel of their betters. They make no secret of their having been actuated by a desire to make money. What they say is sufficiently borne out by the seizure which took place on 26-4-1969. Their testimony therefore satisfy the twin requirements of being credible and supported in material particulars by independent sources. More we need not labour on the subject except to say that we agree with the Magistrate''s reasons for holding the appellants guilty on the different counts.

Learned Counsel points to the great distance of time between the commission of the offence and the hearing of this appeal. In the meantime, appellants have led blameless lives. At the time of offence was committed, Section 135 of the Customs Act, to the extent material, read as under :-

"Without prejudice to any action that may be taken under this Act, if any person -

(a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or

(b) acquires possession of or is in any way concerned in carrying, depositing.. concealing... or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation u/s 111,

he shall be punishable -

(i) in the case of an offence relating of any of goods to which Section 123 applies and the market price whereof exceeds one lakh of Rupees, with imprisonment for a terms which may extend to five years and with fine :

Provided that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the court, such imprisonment shall not be for less than six months."

That apart, what impresses us is the unblemished record of the accused since April 1969. Appellants have undergone some 18 months of imprisonment and so far as the substantive sentence is concerned, that meets the ends of justice. The fine imposed in relation to both the appellants will however have to be enhanced. Accused No. 8 has presently to pay Rs. 2,000/- only. This will be quadrupled and made into Rs. 8,000/-. In case the said amount is not paid, accused No. 8 shall undergo additional R.I. for two years.

Accused No. 15 has presently to pay a fine of Rs. 1,000/- and that is enhanced to Rs. 4,000/-. Non-payment will entail additional R.I. for one year. Hence the order.

ORDER

Appeal partly allowed. The conviction recorded against the appellants, affirmed. The substantive sentences reduced to the period of imprisonment already undergone by both the appellants. The fine payable by accused No. 8 is enhanced to Rs. 8,000/- . Non-payment thereof will subject him to additional R.I. for two years.