ISSA YACUB BICHARA Vs. STATE OF MYSORE AND

JUDGEMENT

(1.) This revision petition is directed against the judgment dated 30-6-1958 passed by the Sessions Judge, South Kanara in Criminal Appeal No. 16 of 1958. By the aforesaid judgment the learned Sessions Judge confirmed the conviction of the petitioners for an offence under Section 8(1) of the Foreign Exchange Regulation Act of 1947 read with Notification No. 12 (11)(f) 1-48 dated 25-8-1948 (as amended), but acquitted them of the offence under Section 167(81) of the Sea Customs Act but confirmed the composite sentence of one year's rigorous imprisonment and a fine of Rs. 1,111/- in respect of the first petitioner and a fine of Rs. 111/- in respect of the other petitioners, passed on each of them by the District Magistrate, South Kanara, in Criminal Case No. 87 of 1957.

(2.) A foreign vessel M. L. Anwar captained by the first petitioner Issa Yakub Bichara entered the Mangalore Port on 13-10-1957 from Muskat with the cargo of 341 bundles of wet dates. The first petitioner filed the entry and other papers on 14-10-1957 and declared that the vessel contained only 341 bundles of wet dates and no other dutiable articles in it. After verification the cargo of 341 bundles of wet dates was discharged by the Customs Authority on 16-10-1957. The fact that only a small cargo of 341 bundles of wet dates had been brought all the way from Muskat to India roused the suspicion of the Customs Authorities and they subjected the vessel to a thorough rummaging for some days from 18th October 1957 hut nothing was found in it. But the Authorities had some credible information that the members of the crew had brought gold concealed in the vessel and therefore, they kept a keen and continuous watch over the vessel. On 31-10-1957 one of the Customs Officials, who was inspecting the vessel once again observed certain cavities underneath the ridge of the hatchway on the port side of the vessel covered with thin deal-wood planks. He suspected that they may be cavities in which gold had been concealed. He, therefore, secured some respectable persons to the place and in the presence of all the petitioners and another member of the crew got the deal-wood planks covered at four places removed. On removing the planks the cavities were searched and they were found to contain gold bars in cotton cloth belts and they were taken out. There were in all 33 belts in the four cavities. On counting the 33 belts they were found to contain 1,390 pieces of gold bearing foreign marks weighing 13,894 1/8 tolas. None of the petitioners had with them any permit to import gold into India. The first petitioner, who was the Captain of the vessel had not declared that he had brought gold into India in the declaration filed by him on 14th of October 1957. These gold bars valued at Rs. 12,50,471/25nP. were seized by the Customs Authorities under a mahazar drawn up at the place in the presence of these petitioners. Necessary proceedings under the Sea Customs Act and the Foreign Exchange Regulation Act were then started against these petitioners and another person. The Collector of Central Excise of Madras and Mysore who held an enquiry under the Sea Customs Act confiscated the gold which had been brought in contravention of the Foreign Exchange Regulation Act without paying the import duty. He further levied heavy fines on the petitioners. After the proceedings were concluded, the Collector of Central Excise of Madras and Mysore under the Sea Customs Act directed Sri A, Para-meshwara, the Assistant Collector of Central Excise, Customs Preventive Kozhikode to file a complaint against the petitioners and another member of the crew for offences punishable under Section 167(81) of the Sea Customs Act and under Section 8(1) of the Foreign Exchange Regulation Act after investigation. Accordingly a complaint against the petitioners-and another was lodged in the Court of the District Magistrate of South Kanara, Mangalore for the above said offences. All the petitioners pleaded not guilty to the charges and denied that the gold belonged to them and that they had brought the same into India. The petitioners examined one witness to prove their innocence. On the evidence adduced in the case the learned District Magistrate held that the petitioners were guilty of both the charges and convicted them but passed a composite sentence against each of the petitioners for both the offences. He sentenced the first petitioner to rigorous imprisonment for one year and to pay a fine of Rs. 1,111/- and sentenced each of the remaining petitioners and another person (who was acquitted by the appellate Court) to pay a fine of Rs. 111/- each. Being aggrieved by the judgment of the learned District Magistrate, the petitioners and the pilot of the vessel, who had also been convicted filed an appeal to the Sessions Judge, South Kanara Division in Criminal Appeal No. 16 of 1958 challenging the correctness and legality of their convictions. Several contentions were raided by the petitioners. The learned Sessions Judge held (i) that none of the petitioners was guilty of an offence punishable under the provisions fit Section 167(81) of the Sea Customs Act since the prosecution had failed to establish mens rea and he, therefore set aside the conviction of all the petitioners on the said charge and (ii) that the third accused, who was the pilot of the vessel was not guilty of any of the two charges and acquitted him. In so far as the charge for contravention of tin-provisions of Section 8(1) read with Section 23(1) of the Foreign Exchange Regulation Act of 1947 is concerned, the learned Sessions Judge held that the finding of the District Magistrate that the petitioners were all guilty was based on proper appreciation of the evidence on record and confirmed the same. As already stilted, the learned Sessions Judge confirmed the composite sentences passed against the petitioners. It is the legality of this judgment that is now challenged before me by the petitioners in this revision petition.

(3.) It is no longer in dispute that the vessel M. L. Anwar which was captained by the first petitioner Issa Yacub Bichara arrived at Mangalore Port from Muskat on 13-10-1957; that thy first petitioner filed the necessary papers including the entry papers and customs declaration on 14-10-1957 and that the declared cargo of 341 bundles of wet dates was discharged by the Customs Authorities on 16-10-1957. It cannot also be disputed that the vessel was being subjected to continuous search from 18-10-1957 by the Customs Authorities on suspicion that gold had been concealed in it till 31-10-1957. The fact that a large quantity of gold valued at Rs. 12,50,471/25nP. was recovered from the cavities which had been made underneath the ridge of the hatchway on the port side of the vessel on 31-10-1957 and those gold pieces which were 1,390 in all, bore foreign marks on them has been satisfactorily established and is not disputed before me. The Courts below have reached the conclusion that the gold seized by the Customs Authorities is foreign gold and had been brought by the petitioners concealed in the cavities made in the vessel without obtaining any permit from the Government of India or Reserve Bank of India and in contravention of the Foreign Exchange Regulation Act with a view to evade payment of duty which would amount to over two lakhs of rupees. On this finding the learned District Magistrate held that all the petitioners were liable both under Section 167(81) of the Sea Customs Act and also under Section 8(1) read with Section 23(1) of the Foreign Exchange Regulation Act. As already stated, the learned Sessions Judge acquitted the petitioners of the charge under Section 167(81) of the Sea Customs Act on the ground that the prosecution had failed to establish mens rea or knowledge and in the absence of a clear finding to that effect none of the petitioners can be held liable under the above said section. But the learned Sessions Judge was of the opinion that mens rea was not a necessary element in so far as the offence under Section 8(1) of the Foreign Exchange Regulation Act 1947 read with Section 23(1) of the said Act is concerned and that proof of the fact that the petitioness had brought gold into India without obtaining necessary permit from the Reserve Bank of India was sufficient to make them liable to answer the said charge and confirmed the convictions of the petitioners of the said charge.