HAZARA SINGH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal is by certificate against the dismissal in limine of the writ petition filed by the appellant in the High Court of Punjab and Haryana. The appellant was convicted under S. 8 (2) read with Ss. 23-A and 23-B of the Foreign Exchange Regulation Act, 1947 (hereinafter called the 'Act') on the allegation that the appellant and one Gopal Das of Delhi were attempting to smuggle Rupees 1,40,000 in currency notes in Rupees 100 denominations across the border. The appellant who is the owner of immoveable who is the owner of immovable and movable properties of substantial value was seen along with one Gopal Dass Carrying a tin box and approaching a customs-cum-police raiding party also termed as nakabandi party near the borders of Pakistan, a little distance away from the village Valtoha on the night of September 25, 1961 at about 9 p.m. When they reached the nakabandi point probably noticing the party in hiding they turned back and started running towards the house of the appellant and were chased by the nakabandi party.The appellant entered his house followed by the nakabandi party and was caught while in the act of concealing the tin box in a heap of wheat in the room where it was stored. In the tin box was found a package tied with a piece of twine in which 14 bundles of currency notes of Rs. 100 denomination were found. The persons comprised in the raiding party disclosed their identity, a seizure memo was drawn up. The witnesses of the seizure memo were Surat Singh, Milkha Singh, Hazara Singh and Natha Singh, Gopal Dass disclosed his identity as a resident of Mohalla Nawab Gunj, Pul Bangish, Delhi. He was also searched and a diary containing the addresses of different persons in India and Pakistan was recovered along with Rs. 127 in currency notes. A statement was given by the appellant to the Customs Officer in the presence of Hazars Singh, Surat Singh, Natha Singh and Milkha Singh that he along with Tara Singh and Gopal Dass were indulging in smuggling, that he and Gopal Dass prepared 14 bundles of Indian currency and placed them in a tin box and that they were to cross the border and hand over the currency notes to Mohd. Hussain of Kasur and Mohd. Tahir of Karachi. The appellant further stated that at 9 a.m. they started towards the border along with the tin box which he carried and Gopal Dass was to cross the border near Wan P.A.P. post with the currency, that when they reached about 50 years from the house they noticed whispering coming from in front of them and since they did not know that there was a naka they immediately turned to the house and while concealing the said small box in the heap of wheat, the police chased them and caught and took possession of Rs. 1,40,000/-. This statement was recorded by U.S. Virdi, Inspector Preventive. It was signed by the appellant and admitted by him as correct. The statement bore the thumb impression of Natha Singh, Surat Singh and Harnam Singh and was attested by police officer Khemkaran.

(2.) Notice to show cause was issued to both the appellant and Gopal Dass to explain within ten days from the date of the receipt of the memo as to why the currency notes and the box which was used as a container should not be confiscated and why further penal action should not be taken under the aforesaid provision of law. As this notice could not be served on the appellant, subsequently a copy was given to the appellant through his advocate on March 31, 1962. The appellant in answer to the show cause notice denied that a nakabandi about 100 yards from Jhugian Gurdial Singh was conducted by the police in collaboration with the customs along with three named persons on September 25, 1961 and he generally denied all the allegations contained in the said notice. He also denied that he made any confessional statement that the currency notes were being taken to Pakistan through unprescribed route near Wan P.A.P. or that he was chased and apprehended by the nakabandi party. According to him, the police party raided his house and recovered Rs. 1,40,000/- without a search warrant in spite of his protests about the high-handedness of the police who in order to save themselves cooked up the story and also arrested him of a cognizable offence under Section 411/414, I.P.C.

(3.) The Collector of Customs Amritsar after he supplied the relevant documents to the advocate of the appellant recorded the evidence of Natha Singh and Harnam Singh who were both cross-examined by the advocate of the appellant. The case was adjourned to give an opportunity to the appellant for his defence. On Jun 26, 1963 the Collector of Customs, New Delhi ordered that the offending currency notes be confiscated absolutely under cl. (6) of S. 167 of the Sea Custom Act, 1878 and he also imposed a penalty of Rs. 5,000/- on the appellant and Rs. 500/- on Shri Gopal Dass to be paid within one month from the date of the order. The Collector found that on a careful consideration of the evidence on record it was established beyond doubt that the currency amounting to Rs. 1,40,127 was clearly attempted to be exported illicitly out of India and the attempt to take out was completed when the nakabandi party intercepted the appellant while making an attempt to smuggle it out, when they chased him to his residence and that at the appellant's residence the currency notes were recovered. Against this order of the Collector an appeal was filed to the Central Board of Excise and Customs, New Delhi. That appeal was rejected after giving the appellant a personal hearing. A revision application was filed before the Central Government on March 2, 1965 which was also rejected on August 9, 1965. After waiting for nearly two years the appellant filed a writ petition under Art. 226 in the High Court of Punjab and Haryana on May 23, 1967 which as we said earlier was dismissed in limine.