ABDUL RAHIM Vs. STATE OF MYSORE

JUDGEMENT

(1.) This petition is directed against the conviction and sentence passed on the petitioner bv the Addl. First Class Magistrate, Mangalore in C.C. No. 2239 of 1967, convicting the petitioner for offences u/s. 111(d) read with S.135 of the Customs Act 1962 (hereinafter referred to in the course of this Order as 'the Act') and Rule 126(P) (2) (ii) of the Defence of India (Amendment) Rules 1963, dealing with gold control (hereinafter referred to as the 'Rules' in the course of this Order), and sentencing him to undego rigorous imprisonment for six months on each of the counts, and confirmed in Crl.A.No.21 of 1969 bv the Sessions Judge. South Kanara.

(2.) The prosecution case is that at about 12-30 p.m. on 11-1-1965 PW-1 Nagaraj, a Sub-Inspector in Central Excise Department and working as such in Customs Special Preventive Branch at Mangalore, was on patrol duty at Hampankatta bus stand in Mangalore town. He observed the petitioner getting down from the bus which arrived from Udipi. Because of the hesitating and nervous movements of the petitioner, suspicions of PW-1 were aroused and as such PW-1 thought that the petitioner might be having some contraband articles and therefore discreetly followed the petitioner. Ultimately the petitioner went into the compound of Lakshminarayana temole and sot on the varande viz., 'jacali' At that stage. PW-1 asked the petitioner about his name, the place etc and got the details. By that time one Ratnakar Shet a goldsmith (PW-3). who has his shop and workshop in one of the premises in the temple compound, was found entering the temple. PW-1 was intending to search the person of the petitioner. Therefore, he called PW-3. By that time Ramnath, a car broker of Mangalore, (PW-2), was passing on the road near that temple, and PW-1 called him also. Thereafter, PWs. 1, 2 and 3 and the petitioner proceeded to the workshop of PW-3 and in the presence of PWs-2 and 3, PW-1 took the search of the person of the petitioner and he found that below a leather-belt tied at the waist of the petitioner, there was a cloth belt marked MO-7 and that cloth belt had pouches which contained six gold biscuits, marked M.Os. 1 to 6, each weighing ten tolas and bearing foreign markings, viz., 'Johnson Mathey, 9990'. They were seized under mahazar Ext. P-1. This was not only attested by the witnesses, but also by the petitioner. Thereafter, PW-1 took the petitioner to the Office of PW-4 who was at that time Deputy Superintendent of Central Excise, Mangalore. PW-1 produced the gold biscuits. PW-4 arranged to keep them in safe custody under his seal. Thereafter, at the instance of PW-4, PW-1 secured PWs 2 and 3 and PW-4 in the presence of PWs 2 and 3 questioned the petitioner, and it is alleged by the prosecution that the petitioner voluntarily narrated in Kannada as per Ext. P-3 and it was reduced to writing, read over to the petitioner and thereafter the petitioner affixed his signature in Urdu. The panchas PWs. 2 and 3 also affixed their signatures to Ext. P-3. It is nextly the prosecution case that thereafter the investigation proceeded and on 16-8-1966, PW-6 who was then working as Deputy Superintendent of Central Excise at Mangalore, secured a goldsmith PW-5 and got PW-5 to cut corners from each one of the gold biscuits M.Os. 1 to 6 and weigh those small pieces i.e. MOs. 1 (a) to 6 (a) . Then PW-6 under his covering letter Ext. P-7 sent those pieces to the Mint Master at Bombay for assay and report. Ultimately, the Mint Master sent his certificates, Exts. P-8 to P-13 under his covering letter Ext. P-14, and the investigation was proceeded with. Ultimately the Asst. Collector of Central Excise secured sanction to prosecute u/s. 137 of the Act and consent to prosecute the petitioner under the Rules, and filed a complaint against the petitioner in the Court of the learned Magistrate.

(3.) The defence put forward by the petitioner is that when he got down from the bus which arrived at Hampanakatta bus stand in Mangalore town, from Udipi, he met one Jaffer of Bhatkar, which is his place, and that Jaffer told him that he wanted to go to Basavangudi. The petitioner was intending to go to Bhatkali Bazaar and as such offered his company to Jaffer. On the way when they reached Basavanagudi, Jaffer told him that he had business with one Ratnakar Shet (apparently PW-3) and so saying went to the shop of PW-3 which is inside the temple premises. Jaffer returned after a little time and said to the petitioner that he had got work for three hours with the said PW-3 and therefore, the petitioner could go away and meet Jaffer about three hours later. The petitioner went to see his relations in Batkali Bazaar and returned to Basavanagudi at about 3-00 p.m. He found PWs. 1 to 3 inside the temple premises. Jaffer was not there. PW-3 pointed him out and at once PW-1 and PW-3 went near him and forcibly put him in a car and took him to the Customs Office. PWs. 1 to 3 spoke to him only in Urdu and he answered in Urdu. He has never stated to PW-4 as per Ext. P-3. It is his say that he has been falsely involved in this case.