HUKMA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This appeal by special leave is against a conviction and sentence under S. 167(81) of the Sea Customs Act, 1878. The appellant was acquitted by the trial court, but on appeal by the State of Rajasthan, the Rajasthan High Court set aside the order of acquittal and convicted the appellant under S. 161(81) of the Sea Customs Act, and sentenced him to rigorous imprisonment for one year. We prosecution case was that on receipt of some information that gold smuggled from Pakistan was being carried, Lal Singh, Sub-Inspector of the Check-post of Barmer, followed the appellant into a railway train at Luni railway station, and in the running train between the station of Kerla and Pali, searched appellant's person and found that be was carrying 286 tolas of gold in a nouli under his trousers. In the reasonable belief that these were smuggled goods, Lal Singh seized the gold. The gold that was seized consisted of six blocks bearing marks "999". N. M. Rothschild and Sons, 22 bars bearing macks '999', 3 small pieces of gold and one pair of murkies. Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the superintendent, Land customs, Barmer. By an order of the collector of customs, New Delhi, dated July 19, 1957, this gold was confiscated and a fine of Rs. 10,000/. was imposed on the appellant, Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under S. 167(81) of the Sea Customs Act. The prosecution claimed that under S. 178-A of the sea Customs Act, the burden of proving that gold was not smuggled lay on the accused. Even apart from that, the prosecution claimed, it was clear that the gold had been smuggled. It was alleged that the appellant had carried the gold knowingly with intent to evade the regulations prohibiting the import of gold into India.

(2.) The main defence of the accused, who pleaded not guilty, was that no gold was recovered from him. The trial court held that the prosecution had failed to establish the recovery of gold from the accused. It further accepted the defence contention that Lal Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made. According to the, learned Magistrate, the seizure, if any, had not been made under the Land customs Act and so had not been made under "the Act" within the meaning of S. 178-A, and there was no question of the accused having to prove that the gold was not smuggled. On the evidence adduced by the prosecution, he was not convinced that it was smuggled gold. Accordingly, be acquitted the accused. The High Court came to contrary findings on all these points. It held that the evidence of Lal Singh as regards the seizure should be believed and that the seizure of the gold from the accused had been proved satisfactorily. It was also of the opinion that Lal Singh had authority to seize the gold at the place where the seizure was made, and that S. 178-A of the Sea Customs Act applied. In the opinion of the High Court, the accused had failed to prove that the gold was not smuggled and that under the provisions of S. 178-A as also on the evidence in the case, the gold had been established to be smuggled gold. All the ingredients of the offence, according to the High Court, had been proved, and, therefore, the accused was convicted and sentenced as mentioned above.

(3.) Three points were noised before us by Mr. S. K. Kapur in support of the appeal. The first was that the High Court it was not justified in disturbing the trial courts finding that the seizure of the gold from the accused had not been proved. The second point urged was that the High Court had fallen into an error in thinking that Lal Singh had authority to seize the gold at the place where the seizure was made. The third contention was that in any case even if S. 178-A applied and it was found that the gold was smuggled, the prosecution had failed to prove the necessary mens rea in the accused that was necessary to constitute the offence.