HIRA H ADVANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The High Court dealt generally with the charge of conspiracy against all the accused and individually with respect to the charges raised against each accused and considered the explanations given by them with regard to the circumstances tending to criminal them. Mr. Jethmalani who argued the case of the first appellant at some length raised various questions of law with regard to the admissibility of the. evidence afforded by statements before the Customs Officers under s. 171-A, the conclusion of the High Court that his client had custody or possession of all the exhibits found as a result of the search of the premises of H.B. Advani Brothers on 21st July, 1950, the correctness of the finding of the High Court that Ex. F.-2 contained a complete account with regard to the consignment per s.s. Canton, the finding of the High Court that the C.I.F. value of the goods exceeded the invoice value many times over by relying on the evidence of an appraiser of the Customs department and the absence of any overt act on the part of his client after the search on 21st July 1959. The argument with regard to the admissibility of evidence of the statements was adopted by counsel for all the other accused and need not be dealt with separately. Mr. Jethmalani virtually conceded that if his contentions on the above heads were not accepted by this Court, it would be futile for him to argue that the High Court had gone wrong in coming to the conclusion as to the. guilt of his client on the strength of the evidence before it and the inference which could legitimately be drawn therefrom. We propose to deal with the other points before examining the contention with regard to the admissibility of the statements made in pursuance of powers exercised by the customs officers under s. 171-A. With regard to the finding of the High Court in agreement with that of the Magistrate that accused I had the custody or possession of exhibits Exs. B to F-2, counsel argued that except those seized from his wallet the others were found in the drawer of the table of the premises searched, there was no evidence to show that the said table was the table of his client and as there was no proof that his client had any financial proprietary interest in the firm of H.B. Advani Brothers, there was nothing to warrant the conclusion that the exhibits other than those in the wallet were in his custody. The High Court dealt elaborately with this point and we do not think it necessary to reexamine the same except to note the comment made before the High Court as well as before us that the evidence of Mr. Dame, the panch witness who had said that at the time of the search accused 1 was sitting at the table in a drawer of which the incriminating exhibits were found was. unbelievable. It was argued that inasmuch as the panchnama did not record this fact Dame who gave evidence in 1962 should not have been believed when he claimed. to. have remembered the. fact of accused 1 sitting at the table mentioned. Both the courts accepted Dames statement and we see no good reason to take a different view. After all it would not be extraordinary for any person to recollect even after a considerable lapse of time that when he entered the room which was going to be searched, he found a particular person seated at a certain table inasmuch as this, would be the very first thing which would attract any bodys attention. With regard to Ex. F.-2 which according to the prosecution case--accepted by the courts below--contained an account with regard to the consignment per s.s. Canton the prosecution case was that the figures on the left-hand side indicated the rates and the figures on the right-hand side indicated the total C.I.F. value of the goods of each type in that consignment. Before us exception was taken to the two figures 80.80 and 11.02 appearing on the right hand side. According to the prosecution the figure 11.02 was. the amount of insurance premium in dollars paid in respect of the consignment on s.s. Canton. As the original which should have been with accused 2 was not produced, a copy of the insurance policy was put in and marked as Ex. Z.-301. Ex.Z-259-F-1 was a copy of the same produced by accused 2 before the customs officers on 24th July 1959 as was borne out by the statement of accused 2. The contents of the two exhibits were found to be the same by both the courts. The Claim Superintendent of the insurance company in Bombay produced the copy of the marine premium note in respect of the said policy showing the amount of premium as $11.02 and said to have been received by the Bombay office of the insurance company. Objection was raised to the admissibility of evidence of one Martin, Assistant Manager of New Zealand Insurance Company Hong Kong Branch who had joined that branch in 1963 i.e. long after the issue of the policy in 1959 although he had been an employee of the said company since 1952 and claimed to be familiar with the procedure of insurance of export cargo followed by the company. According to this witness, the company used to prepare as many copies of the policy as were required by the insurer. A carbon copy of the original was always kept in the office record. Martin produced an office copy of the policy in respect of the consignment on s.s. Canton to which was attached a marine premium debit note and it was his evidence that in the usual course of business of the company such a debit note. was, always prepared at the time when the policy was issued and a copy thereof was attached to the copy of the policy kept in the records. Counsel objected to the reception of the copy of the premium note on the ground that there was, no proof of its making or its correctness. The High Court accepted the evidence of Martin that the copy of the premium debit note had been attached to the policy kept in the office record relying on the presumption afforded by illustration (f) to s. 114 of the Evidence Act that the practice of the insurance company of attaching such a note to the policy had been followed in this particular case. In our view the High Court was entitled to do. so and no objection can be allowed to be raised on the ground that there was no. proof of the preparation of that original premium note. With regard to. the figure. 80.80 counsel argued that there was no proof that this was the amount of the freight in dollars charged in respect of the consignment per s.s. Canton. Counsel argued that the freight paid was not shown in the bill of lading in this case Ex. Z-259-G and the production of the copies of the bill of lading Ex. M-3 and Z-142W on which somebody had written the figure $80.80 did not establish the prosecution case.Ex. M-2 was the Manifest of Cargo per s.s. Canton and entry No. 5 therein showed that in respect of the consignment 80.80 dollars had been paid as freight. The prosecution adduced evidence of P.W. 45 Yeshwant Shankar Keluskar of Mackjnon Mackenzie & Co. who produced the Import General Manifest dated 20th July 1959 as also the Freight Manifest. According to this witness on the consignment on s.s. Canton 80.80 Hong Kong dollars had been paid as freight. He had no. personal knowledge but made. his statement on the basis of the record produced from his office. The prosecution also relied on Ex. M-3 the shippers copy of the bill of lading produced before the customs officers on 24th July 1959 by accused 2 containing the rate at which the freight was charged and also the actual amount of freight charged viz., 80.80 Hong Kong dollars. Objection was taken to this inasmuch as the amount of the freight did not appear in the bill of lading Ex. Z-259-E. The prosecution case was that freight was paid after the preparation of the Bill of lading and just before the goods were actually put on board and the reasonable explanation was that the amount of freight had been calculated subsequent to the preparation of the bill of lading and endorsed thereon as on Ex. M-3 subsequently. According to the High Court it could be said to be a subsequent original endorsement on a copy and the High Court relied on Ex. Z-148-W a carbon copy of the bill of lading bearing a similar endorsement and also on the fact that on both Ex. M-3 and Ex. Z-148-W the words "freight paid" appeared impressed by a rubber stamp in addition to the calculation of freight and the actual amount of freight. In our opinion, the High Court rightly held that all this established the prosecution case that the figure 80.80 in Ex. F-2 indicated the freight that was actually paid for the consignment on s.s. Canton. As Ex. M-3 was produced by accused 2 the consignee :before the customs officer on 24th July 1959 and contained the said endorsement the High Court was entitled to draw the necessary inference therefrom supported as it was by Ex. Z-148-W the Captains copy of the bill of lading which bore a similar endorsement. Counsel contended that the evidence of P.W. 90 the appraiser of customs with regard to the C.I.F. value and the market value of the goods was at best hearsay and should have been rejected by both the courts below. The entries relied on in this connection appear on Ex-D found in the possession of accused No. 1. There was no evidence to show that it was written by him. P.W. 90 J.M. Jamedars evidence was that he had been acting as an appraiser of customs doing valuation work for 11 years and had experience in the valuation of Japanese rayon goods, fountain pen refills, Roamer watches, plastic buttons,_ playing cards etc. He had taken samples from the consignments and noted the particulars thereof and had made the valuation of the goods of the consignments in question after making enquiries from the market and on the basis thereof had stated the C.I.F. value at the relevant time. This witness had been subjected to prolonged cross- examination but nothing came out therein which would enable the court to hold that his testimony was unreliable. The witness had stated that the goods had been valued by him after making necessary enquiries from the importers dealing in the same or similar goods supplied from foreign countries as well as by referring to prices offered or quotations whenever available and where it was not possible to obtain the C.I.F. value from the market he had assessed the value of such items to the best of his judgment and experience. It was argued by counsel that as the witness was not himself a party to whom offers and acceptances had been made or communicated by others and as he did not claim to have been present when such offers and acceptances had been made, his evidence as regards the value was hearsay. It was said that at best he was a mere conduit pipe of enquiries from others and was not in the position of an expert. We find ourselves unable to accept this submission. Jamedar according to his unshaken testimony had been working as an appraiser of customs. for 11 years out of his 16 year service and was engaged in the valuation of goods and ascertaining their C./.F. value. He had occasion to value goods which formed the subject matter of con, signments of s.s. Canton. He claimed to have made enquiries in the market with regard thereto. Apart from his own experience and knowledge the record shows that the witness gave evidence as to the C.I.F. value of a very large number of articles and it should have been quite easy for the defence who cross-examined him at great length to discredit his testimony by offering evidence from the market that the witnesss estimate as to the C.I.F. value of any particular item was unreliable. After all what the court had to do in this case was to form an opinion as to. whether the C.I.F. value greatly exceeded the invoice value as put forward by the prosecution and Jamedars evidence certainly went to show that the C.I.F, value and the market value of the contraband goods imported was far in excess of the value thereof mentioned in the invoices. It may be mentioned here that the document Ex. D mentioned the consignments inter alia of all the three ships and the High Court held that the document related to imports in which accused 2 was interested and possession of the document by accused 1 went to show that he too was concerned in such imports. We now come to the question as to the admissibility of the statements made to the customs officers under s. 171-A of the Sea Customs Act. At the outset it has to be noted that this section came into the Statute Book in the year 1955 and there was nothing similar to it in the Act before such inclusion. The section reads: