SEVANTILAL KARSONDAS MODI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Seventilal Karsondas Modi (the sole appellant before us) for an offence under Section 120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of the Section 135 of the Customs Act 1962 and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay,

(2.) The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended. The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under Section 494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate for want of evidence against them. Charges were framed by him on 10 counts against the other 20 accused who were tried in consequence. At the trial, 266 witnesses were examined in support of the prosecution case and 6 in defence. Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial, while 13 of those charged were convicted and sentenced to various terms of imprisonment. All the 13 last mentioned went up in appeal to the High Court who acquitted accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be the appellant before us. He was convicted and sentenced by the learned Magistrate as aforesaid and also on a separate charge for an offence under clauses (a) and (b) of sub-section (1) of Section 135 of the Customs Act and sentenced to rigorous imprisonment for six months in consequence. His conviction on that charge, however, was set aside by the High Court, against whose judgment, as already stated, special leave to appeal was granted to him by this Court.

(3.) The prosecution case in so far as it is relevant for the purpose of this appeal may be briefly stated. V. K. Asthana, (P. W. 228) who was then the Deputy Director in the Directorate of Revenue Intelligence in the Department of Customs at Bombay and is hereinafter referred to as 'Asthana', received information in the first half of September 1966 to the effect that flat No. 2 forming part of the building known as Sagar Mandir and situated in that locality of Bombay which is called 'Shivaji Park' was being used for storage of smuggled gold and disbursement thereof to its purchasers. After the flat had been kept under watch for a few days by some officials of the Department, a decision was taken by Asthana to raid the premises. The raiding party which consisted of senior Customs Officers, took positions in the vicinity of Sagar Mandir on the morning of 14 September 1966. They included B. M. Sevalia, Preventive Officer, Bombay Customs (P. W. 7 and hereinafter referred to 'Sevalia') G. N. Alreja, Preventive Officer, Bombay Customs (P. W. 34 and hereinafter mentioned as 'Alerja'), P. G. N. Ayengar, Appraiser in the Directorate of Revenue Intelligence (P. W. 144 and hereinafter called 'Ayengar') and D. G. Mugwe, Principal Appriasier in the said Directorate (P. W. 152 and hereinafter referred to as 'Mugwe'). Sevalia was debuted to watch the movements of persons entering the flat and to give a signal on the arrival of the suspects. At about 8.50 A. M., accused No. 12 was seen entering the flat and Sevalia alerted the other members of the raiding party by giving the agreed signal. Half an hour later, a car stopped at the entrance to the compound of the building and accused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance. He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside that flat. The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each. All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives. Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing accounts exhibit 'O' were found lying in the passage forming part of the flat. Bandi exhibit J-2 was secured from a room of the flat. A search of the person of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the flat, and sheets of accounts exhibit 'S'. While the search was going on, accused No. 13 was found peeping from outside through a grille forming part of the flat but started running away on seeing what was happening inside. He was chased and captured and two keys were seized from his person. One of them was found to fit the lock on the outer door of the flat and the other to fit the latch therein. He was also found wearing a bandi similar to bandi exhibit J-2. At his instance four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered from underneath the mattress lying on a bed in the flat. Accused Nos. 5 to 7 and 13 were interrogated by the Customs Officials. The statement of accused No. 13 exhibit Z-383 was recorded by Ayengar on the 15th of September 1966. In that statement, the appellant gave an exhaustive account of the circumstances in which he happened to come to Bombay and made his services available to the principal accused named J. K. Shah. The long and short of the statement may be summarised thus: One day J. K. Shah called accused No. 13, gave him some cloth and sent him in the company of one Goverdhan Das to have the cloth tailored into bandis of a special type having two wide and long pockets in the front. The cloth supplied was thick and strong. A few days after the bandis were ready, accused No. 13 was taken to the flat in question by his sister's husband, named Natwarlal (accused No. 12) or by accused No. 15. Thereafter accused No. 13 visited the flat several times when he would receive bandis containing gold brought from outside and store them in the flat or would remove such bandis from the flat to other places in town. J. K. Shah had given him keys of the flat. What ever gold was removed by him from the flat, was either deposited by him in a room on the second floor of a building situated in Modi Street or delivered to J. K. Shah in the latter's office on the 3rd floor of building No. 111 situated in Tambakanta. The room in Modi Street had a telephone the number whereof was 262283 and a key of this room was supplied to him by J. K. Shah. He used to receive orders either from J. K. Shah or from accused No. 15 to go to the flat in Sagar Mandir and receive the gold there. He received gold in this way on the 12th and 13th of September 1966. On the day of his capture he was in the room in Modi Street when he received a telephone call from J. K. Shah at 11 or 11.15 A. M. requiring him to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J. K. Shah was to be informed on the telephone. Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong. For that purpose he looked through a broken ventilator. While he was coming towards the road on the beach nearby he was detained and was taken inside the building. While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir.