HARBANSINGH SARDAR LENASINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This is an appeal by Harbansingh Sardar Lenasing and Wali Mohammad Noor Mohammad Makhnojia on certificate granted by the Bombay High Court against the judgment of that Court affirming on appeal the conviction of the appellants under Section 135 of the Customs Act, 1962 and Section 23 of the Foreign Exchange Regulation Act, 1947 and the sentence of rigorous imprisonment for a period of three years on the former count and one year on the latter count. The sentences on the two counts were ordered to run concurrently for each of the appellants. Wali Mohammad died during the pendency of this appeal, and the appeal in so far as it relates to him has consequently abated. We are now concerned with the appeal of Harbansingh alone, hereinafter referred to as the appellant.

(2.) The prosecution case was that on March 21, 1965 Anant Sadasiv Wagh (P. W. 1), who was in those days working as Deputy Superintendent, Central Excise and Customs, received telephonic intimation from his superior Officer Jokhi that contraband goods were likely to be imported near Bassein and that Wagh should get ready. A car was thereafter sent to the house of Wagh. Wagh accompanied by Jokhi, Inspectors Jadhav and Surti and one constable left Vadala at about 10 p. m. and reached Bassein level crossing at about 1.30 a. m. They stopped their car near the wicket gate of the level crossing. The car was facing towards Vajreshwari when it was parked near the wicket gate. Its lights were then put off. At a distance of 4 or 5 furlongs from the wicket gate towards Vajreshwari side, there is a bridge across a creek on that road. About half an hour after their arrival, wagh P. W. and his companions saw the lights of a car coming from Vajreshwari side. The said car after arrival near the bridge put off its lights and turned towards a kutcha track leading to salt pans. The car after that again turned towards the road and stopped at some distance from the road. Wagh and his companions waited for 10 or 15 minutes. As they did not notice any movement during this interval, they took their car towards the bridge. When they reached near the bridge, they found that the engine of the car on the kutcha track had been kept running. Shortly thereafter, the car on the kutcha track started moving but it was obstructed on the main road because the car in which the Customs Officials were present was placed across the road. Wagh and other Customs officials then got down from their car and went up to the car which had been intercepted. The driver was at the steering wheel, while Harbansingh and Wali Mohammad accused were found sitting on the back seat. Inspector Surti removed the ignition key of the car of the accused. Wagh and Jokhi questioned the two accused as to why they had come there. The two accused kept silent for some time and thereafter, Wali Mohammad said that there was gold in the dicky of the car. The dicky was not locked, and on opening it, Wagh and other members of party saw four gunny bundles in the dicky. The gunny bags were wet with mud.

(3.) Jokhi then told Wagh P. W. to procure some panchas, Wagh accordingly went to Bassein town at a distance of four miles from the wicket gate. In Bassein, Wagh contacted Inspector Pandit of Customs Department who resides in Bassein. Pandit then brought two Panchas Abhyankar and Kane (P. W. 2). It was past 4 a. m. by the time Wagh returned with the panchas. The dicky was opened and the gunny bags were shown to the panchas. The tyre marks of the car of the accused were also shown to the panchas. It was thereafter decided that the panchanama should be prepared at Bombay and not at that lonely spot at an odd hour. The two accused were then made to sit in their car. Three of the Customs Officers went with the accused in that car, while the remaining Customs Officials and panchas went in the other car. The two cars reached the Central Excise and Customs Office in Churchgate, Bombay at about 9 a. m. The four gunny bags then taken to the office along with the two accused and the panchas. On opening the gunny bags, it was found that there were two jackets in each of the three gunny bags and one jacket in the fourth gunny bag. There were gold chips in all the seven jackets. The gold chips had two separate markings. One of the markings was "Johnson Mathey London 99.90 10 Tolas," while the other marking was " M. Rothschild and Sons 99.90 10 Tolas". There were in all 692 chips and they weighed about 6920 tolas. The value of gold according to the then market rate was about Rs. 6.75.000. The makings on the chips showed that the gold was of foreign origin. Such chips were also not prepared in India.