TRIVENI PRASAD RAMKARAN VERMA Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant was tried before the Presidency Magistrate, 25th Court, Mazgaon, Bombay for offence under Clause (a) and (b) of Section 135 read with Section 135 (ii) of the Customs Act, 1962 and Rule 126H (2) (d) read with Rule 126P (2) (iv) of the Gold Control Rules 1963. The prosecution case against the appellant was that on 7th September, 1965 about at 3.45 p. n. Inspector Tilwe, who was at the material time Sr. Grade Inspector of Customs attached to Gold Circle, Central Excise, Bombay, received information that two persons would be coming down from a building known as Hira Mahal, situated at Kalbadevi Road, and they will be carrying gold in the handle of a cane basket and also in their shoes. Inspector Tilwe, on receipt of this information, sent for Inspector Nichani and both of them kept guard outside Hira Mahal building from about 8.00 p.m. Around 8.45 p. m., the appellant accompanied by his maternal uncle's son. Dwarkaprasad, his son Dalip aged 9 years and his servant by the name of Mahadev,came out of Hira Mahal building. The appellant was carrying a basket in his hand and after coming out of the building, the appellant and his companions got into a Victoria and proceeded towards Victoria Terminus Station. Inspector Tilwe and Inspector Nichani followed these persons and when the appellant and his companious got down from the Victoria and entered the platform. Inspector Tilwe accosted them and took them to the office of the Assistant Station Master and searched them there in the presence of three panchas. Two of the panchas were selected by Inspector Tilwe while the third volunteered to act as Pancha. On taking search, it was found that the shoes worn by the appellant and Dwarkaprasad has specially made cavities and four gold biscuits with foreign markings were found in the shoes of each of these two persons. The basket carried by the appellant also contained 27 gold biscuits with foreign markings concealed in the handle which was made of brass and which had a specially made cavity in it for concealing gold biscuits. While the search was going on, one Ticket Collector called Tharandas Bhatia arrived on the sence and he also witnessed the search. Inspector Tilwe seized the gold biscuits which were recovered from the appellant and Dwarkaprasad, in the reasonable belief that they were smuggled and hence liable to confiscation under Section 111 of the Customs Act, 1962. This search and seizure was recorded in a Panchanama Ex. X, which was witnessed by the three panchas. Inspector Tilwe also seized from the appellant two first class Railway Tickets for the journey from Bombay to Kanpur, oneReservation Card and two Platform Tickets and so also were the basket and the shoes seized under the same Panchanama Ex. X Inspector Tilwe then took the appellant and Dwarkaprasad to the Central Excise Office and recorded their statements in the presence of Inspector Nichani under Section 107 of the Customs Act, 1962. The statement of the appellant which is marked Ex. H was written by Dwarkaprasad in Hindi and was signed by the appellant. The appellant admitted in his statement that he was carrying smuggled gold concealed in the handle of the basket and shoes for being handed over to a firm called M/s. Pannalal Durgaprasad at Kanpur and that the he had been doing this work for the last six months ever since his business as a goldsmith was closed down. Another statement of the appellant was also subsequently recorded by Inspector Tilwe on 22nd November, 1965 at the shop of the appellant and this statement was written by one Maganlal an employee of the appellant, in Gujarati and was signed by the appellant. Both the appellant and Dwarkaprasad were thereafter prosecuted for offences under Clauses (1) and (b) of Section 135 read with Section 135 (ii) of theCustoms Act. 1962, and Rule 126H (2)(d) read with Rule 126P (2) (iv) of the gold Control Rules, 1963, Dwarkaprasad pleaded guilty to the charge and was convicted and we are not concerned in this appeal with the conviction and sentence recorded against him. The appellant denied the charge and hence he was tried before the learned Presidency Magistrate. The only evidence led on behalf of the prosecution against the appellant was that of Inspector Tilwe and Tharandas Bhatia, None of the panchas was examined as a witness to prove the search and seizure. The learned Presidency Magistrate observed that in view of the fact the Tharandas Bhatia had not signed the Panchanama Ex. X nor his statement had been recorded by the Customs Authorities or the Railway Police, and his name had also not been shown as a witness in the complaint, it would not be desirable to rely on his evidence against the appellant. But the learned Presidency Magistrate found the evidence of Inspector Tilwe satisfactory and convincing and on the strength of this evidence, he held the charge proved against the appellant and convicted the appellant of the offence under Cl. (b) of Sec. 135 read with Section 135 (ii) of the Customs Act. 1962 and Rule 126H (2)(d) read with Rule 126P (2) (iv) of the Gold Control Rules, 1963 and sentenced him to suffer rigorous imprisonment for two months and to pay a fine of Rs. 500/- or in default tosuffer rigorous imprisonment for two months for each of these two offences. Since there was no evidence to show that the appellant himself had smuggled the seized gold into India, he was acquitted of the charge under Clause (a) of Section 135 read with Section 135 (ii) of the Customs Act, 1962.

(2.) The appellant preferred an appeal against his conviction and sentence but the High Court agreed with the view taken by the learned Presidency Magistrate and dismissed the appeal of the appellant. Hence the present appeal with special leave obtained from this Court.

(3.) It is true that the conviction of the appellant rests solely on the evidence of Inspector Tilwe. There were three panchas who witnessed the Panchanama Ex. X regarding search and seizure of gold from the appellant but unfortunately none of the three panchas could be examined, as they were not traceable in spite of efforts made by the prosecution. Two of the panchas undoubtedly remained present in the course of the adjudication proceedings but that was in December 1967. The trial before the learned Presidency Magistrate commenced in April 1969 and evidence was given by Inspector Tilwe in December 1969 and at that time none of the three panchas could be traced and brought for the purpose of giving evidence. The statement of Inspector Tilwe that "all the three panchas are now not traceable in spite of great efforts was not challenged in cross examination and we must, therefore, proceed on the basis that none of the three panches was available and if that be so, no adverse inference can be drawn against the prosecution for non examining any of the three panchas. Tharandas Bhatia was no doubt examined but the learned Presidency Magistrate preferred not to rely on his evidence and we think, he was right in doing so. Inspector Nichani could, of course, have been examined as a witness, since he was present at the time of search and seizure, but his non-examination cannot help the appellant, since he was also an Inspector in the Customs Department like Inspector Tilwe and once Inspector Tilwe gave evidence, it would not have added to the weight of prosecution evidence by also examining him. The prosecution case against the appellant must, therefore, in the ultimate analysis stand or fall by the evidence of Inspector Tilwe. The learned Presidency Magistrate as well as the High Court accepted the evidence of Inspector Tilwe and we do not see any reason to interfere with the concurrent view taken by both these Courts as regards the appreciation of his evidence. It was not the case of the appellant that he and Dwarkaprasad along with Dalip and Mahadev did not proceed from Hira Mahal building to Victoria Terminus or that they were not take by Inspector Tilwe to the office of the Assistant Station Master for purpose of search or that gold was not found as a result of the search, but his defence was that the seized gold was found from Dwarkaprasad and not from him and that both the basked and the shoes belonged to Dwarkaprasad and he had nothing to do with the same. Now, it is difficult to see why Inspector Tilwe should have falsely implicated the appellant if, in face, the seized gold was found only from the person of Dwarkaprasad and the appellant was completely innocent. It may also be noticed that the case of the appellant was that Mahadev was the servant of Dwarkaprasad and it was Dwarkaprasad who was going from Bombay to Kanpur along with his servant Mahadev and the two Railway Tickets from Bombay to Kanpur were meant for Dwarkaprasad. But it is difficult to understand why in that event there should have been two first class Railway Tickets. Mahadev could not possibly be travelling by first class along with his master. The fact that there were two first class Railway Tickets shows that the appellant and Dwarkaprasad were going to travel from Bombay to Kanpur. this is also borne out from the statement Ex. H given by the appellant to Inspector Tilwe. The appellant tried to wriggle out of the statement Ex. H by showing that it was taken from him under threat and was not a voluntary statement containing the true facts. But it is evident from he contents of the statement Ex. H that it is a genuine document. There are several details in the statement Ex. H which could never have been dictated by Inspector Tilwe. There is inherent evidence in the contents of the statement. Ex. H showing that the statement is true. It was admitted in the statement Ex. H, that the appellant was carrying gold from Bombay to M/s. Pannalal Durgaprasad at Kanpur and this statement is clearly supported by the seizure of two First Class Railway Tickets from Bombay to Kanpur. It is true that the reservation card seized at the time of search did not show in whose name the reservations were made and it would have been better. if the prosecution had summoned the railway authorities to produce the Reservation Chart of the train for the purpose of showing in whose name the reservations were made. But even so, the fact that the reservation card was seized from the appellant shows that the appellant was travelling from Bombay to Kanpur. We do not see any cogent reasons for taking a different view from that taken concurrently by the learned Presidency Magistrate and the High Court in regard to the evidence of Inspector Tilwe and we think this evidence is sufficient to found the conviction of the appellant.