KAPURCHAND KESRIMAL JAIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by special leave from the judgment of the High Court of Judicature at Bombay dismissing in limine with one word "dismissed", the appeal preferred by the appellant against the judgment of the Additional Chief Presidency Magistrate, 19th Court, Esplanade, Bombay, convicting him under S. 135 (a) and (b) read with S. 135 (i) of the Customs Act, 1962 and under Rule 126H (A) of Part XII-A of the Defence of India Rules, 1962 (as amended) read with Rule 126P (ii) and (iv). The appellant was sentenced to various terms of imprisonment and to a substantial amount of fine to which it is unnecessary to refer for the purposes of the present appeal.

(2.) The only argument addressed by Shri Porus Mehta, the learned counsel appearing before us in support of the appeal is that the High Court was wrong in dismissing the appellant's appeal in limine because the appeal involved arguable points requiring appreciation and reappraisal of the evidence on questions of fact and it also raised important questions of law. The prosecution case, broadly stated, may be narrated here for the purpose of appreciating the appellant's submission.

(3.) On October 2, 1970 Shri D. V. Sohini, Assistant Collector of Customs, Preventive Department, Bombay, filed a complaint against the appellant Kapur Chand Kesrimal Jain, under S. 135 (i) of the said Act and under R. 126H (A) of Part XII-A of the Defence of India Rules, 1962 (as amended) punishable under R. 120P (ii) and (iv) read with S. 116 of the Gold (Control) Act, 1968 in the Court of the Chief Presidency Magistrate, Esplanade, Bombay, in respect of 2015 tolas a gold valued at Rs. 3,60,000 at market rate and import duty amounting to Rs. 2,11,588.86 ps. leviable thereon. According to the prosecution version on November 15, 1967 at about 5 p.m. Rameshchandra, Assistant Collector of Customs, Bombay, had raided flat no. 3 on the First Floor of Basant Building, Poddar Road, Bombay, on the basis of information received. He was accompanied by three or four officers and had also secured a search warrant. On entering the flat they found a lady present there claiming to be the wife of the person living in that flat. On search in the outer room of that flat two cloth jackets containing 100 pieces of gold each having foreign marking thereon and each gold bar weighing 10 tolas were found concealed underneath a sofa-cum bed and between the wall and the back thereof. On search of the owner's room in the flat was found a cupboard which was locked. As the lady did not possess the key thereof a locksmith was called who opened the lock of the cupboard. In that cupboard 15 bars of gold of 10 tolas each with foreign markings thereon and 5 empty cloth jackets similar to the two jackets found in the outer room were found. Soon thereafter the husband of the lady also arrived. He gave his name as Kapurchand Kesrimal Jain, the appellant. The principal question which arose for determination in the case related to the possession of the contraband gold recovered from the outer room and the cupboard as contemplated by the law under which the appellant has been convicted. According to the prosecution version the appellant was asked by Rameshchandra (who appeared as P.W. 1) about the key of the cupboard to which he replied that the same had been concealed by him underneath the cupboard itself. The key was produced by the appellant from under the cupboard. When the locksmith had come, on enquiry from the adjoining flats it was learnt that one Shri Gulati living in the adjoining flat no. 4 was the landlord of this flat. An agreement relating to the lease and licence of the flat in question was also found on the premises but this was in the name of one S. K. Jain. The appellant's defence was that Shri Gulati, the landlord, had access to the flat in question and that the goods recovered from the cupboard belonged to the lessee, Shri S. K. Jain. The trial Court in a lengthy judgment disbelieved the defence version and relying on the prosecution case, convicted the appellant, as stated earlier.