UNION OF INDIA Vs. KANCHANLAL TRIKAMLAL

JUDGEMENT

(1.) The Customs Officers at Baroda and Ahmedabad received an information that a parcel containing smuggled goods was carried by the employee of the firm of Ms. Somabhai Kanchanlal & Co. accused No. 4 in the case from Bombay to Ahmedabad. In total 11 parcels of the firm of accused No. 4 arrived at Ahmedabad Railway station by Gujarat Mail on August 20 1971 The parcels were in a break van. The parcels were received by an employee of the accused firm at Ahmedabad Railway Station at about 6.30 a.m. The parcels were then loaded in a hand-cart and taken to the office of the firm situated at Panchkuva Ahmedabad. The Custom Officers followed the parcels keeping a watch over them. At about 9 or 9-30 a.m. the Manager of the firm of the accused at Ahmedabad was called at the office and in his presence and in the presence of two panchas the parcels were opened. One parcel was found to be wrapped with a hession cloth. The hession was removed and a parcel wrapped in brown paper was found. On it there were writings. The name of the consignor and the consignee was written. There was also an endorse- ment to the effect that the parcel was insured for Rs. 120.00. On removing the brown paper small packets wrapped in newspapers were found and on further opening 200 wrist watches of Hendry Sandoz and Sandos mark were recovered. The wrist-watches were of foreign make and origin. The documents for legal import and transport of foreign goods were demanded from accused No. 5 but he could not produce them. The watches were seized under a panchnama by the Custom Officers under a reasonable belief that the same were smuggled goods liable to be confiscated under the Customs Act 1962 The goods were valued at Rs. 22000.00 at the then market price.

(2.) Accused-appellants Nos. 1 2 and 3 are the partners of the firm accused-appellant No. 4. Accused-appellant No. 5 is the Manager of the accused firm at Ahmedabad while accused-appellant No.6 is the Manager of the said film at Bombay. Two statements of accused No. 5 dated August 20 1971 and January 1 1972 were recorded by Mr. Vora Super- intendent Central Excise Baroda who investigated the case on behalf of the Custom Authorities. Mr. Vora also recorded two statements dated October 12 1971 and January 10 1972 of Kantilal Chaturdas Patel accused No. 6 the Manager of the accused firm at Bombay. The state- ments of these two accused are proved to be voluntary and correctly recorded. The statements of the two accused recorded by Mr. Vora disclose the manner in which the business of the firm is carried on. The accused firm has its branch offices at Bombay Baroda Ahmedabad etc and has its main office at Surat. The parcels entrusted to the firm are carried from one place to another. The receiving office takes the parcels delivered to it for transport and if the persons entrusting the parcels insist for a receipt it is given to him. The firm acts as a carrier of the goods and does not open the parcels unless it has some suspicion about the contents thereof. Parcels are received upto 3-00 Oclock in the Bombay Office. The parcels are thereafter sorted out and divided in two categories namely insured parcels and ordinary parcels. Entries in respect of the parcels are made in the list which is known as Bharatia. There is no clear evidence on the record whether such entries are made in any other register or registers. The Bharatia is prepared in triplicate. One copy thereof is sent to the Head Office of the firm at Surat. The other copy is sent along with the parcels through the employee who carries the valuable parcels and the third copy is retained in the office receiving the parcels for dispatch. Ordinary parcels are put into one big parcel weighing about 60 or 70 Kgs. If the parcels are more then more big parcels each weighing about 60 or 70 kgs. are made. Valuable parcels are covered by the firm with a hessian cloth. The ordinary parcel or parcels are carried in a break-van but the insured parcels are carried by the employee of the form in a separate bag. The Custom Officers ordinarily first search the parcels carried personally by the employee. The parcels are taken delivery of at the destination station and then carried to the office of the firm. The octroi is paid at the office of the firm which receives the parcels. The Octroi Officers open the parcels if they have suspicion about the valuation thereof. The delivery of the parcel is given at the office under receipt to the consignee or to a person authorised by the consignee on payment of money if the charge for transfer is not paid at the receiving centre. One important feature to be taken notice of is that the firm does the business as a carrier and does not normally open the parcels that is there is no practice of opening the parcels to check their contents unless there is a suspicion about contents thereof. The practice that is followed by accused No. 4 does not require a description of the contents of the parcel to be given either on the parcel or by giving at a separate declaration form in that respect. There is no dispute as to the manner in which the accused firm carries on its business as a carrier of the goods.

(3.) So far as the present case is concerned the record shows that a parcel wrapped in a brown paper was delivered by or on behalf of one Kantilal Chhaganlal at the Bombay Office of the firm at about 6 p. m. On August 19 1971 In respect of this parcel an entry was made in the copy of the Bharatia kept at the Bombay Office and the said entry is the last entry in the Bharatia. The entry in respect of this parcel was not made in the Bharatia given to the employee who carried the parcel to Ahmedabad. As the parcel was delivered by the consignor at the last moment the entry in connection thereto was made in the copy of the Bharatia kept at the Bombay Office and telephone call was made at 7 p.m. by accused No. 6 at the Ahmedabad Office instructing the office to make such an entry in the copy of the Bharatia which they would receive Such an entry was subsequently made by accused No. 5. On the brown paper of the parcel delivered at Bombay Office by or on behalf of Kantilal Chha- ganlal it was endorsed that it was insured for Rs. 120.00 but the parcel was treated as in fact as an ordinary parcel because no insurance charges were paid. In the copy of the Bharatia received at Ahmedabad four more entries were made by accused No. 5 as four more parcels were received and one of those entries was made in such a manner that it is written over on the entry in the name of Kantilal Chhaganlal. These four entries are made in ink. This state of affairs appears from the record and Mr. Thakore for the respondents and Mr. Patel for the appellant did not dispute the same.