DEVCHANDBHAI JAGUBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BOTH these criminal revision applications are against the same judgment and order of the learned Additional Sessions Judge, Broach, in a criminal appeal which he dismissed. The appeal before the learned Additional Sessions Judge was against the judgment and order of the learned Chief Judicial Magistrate, Broach, by which the learned Magistrate convicted three persons of the offence punishable under Section 135 of the Customs Act and sentenced each of the three persons to rigorous imprisonment for two years and to pay a fine of Rs. 2,000/- in default rigorous imprisonment for two months. The facts leading to this case are as follows: On November 20, 1969 at about 900 p. m. one Ambassador motor car bearing No. GJG 5446 approached the bridge across the Narmada at Broach. It came from Baroda side and was proceeding towards Surat. It was intercepted by the customs officers of Broach at the northern end of Narmada Bridge. Accused No. 1 was driving the car, accused No. 2 was sitting in the front by the side of accused No. 1 and accused No. 3 was sitting on the rear side. On suspicion the customs officers searched the said car in the presence of Panchas and they found 48 silver bars weighing 189. 16 kilograms and the total value of those 48 silver bars was Rs. 94,508/ -. These 48 bars were secreted between the rear seat and the spring of the seat and beneath the said seat of this car. These bars were seized by the customs officers, Broach, under a regular Panchnama drawn up on November 20, 1969 and they were seized under a reasonable belief that the silver bars were being taken for being smuggled out of India from an unauthorised place on sea shore. According to the complaint lodged by the customs officers, accused No. 1 admitted that they were carrying the silver bars which they had brought in an unauthorised manner from Delhi and that they were carrying the same to Surat. He had also admitted that he had transported the said silver without cover of transport voucher contemplated by Section 11k (1) of the Customs Act. Accused Nos. 2 and 3 also admitted these facts and corroborated the version of accused No. 1. Accused No. 3 admitted that he was the owner of the car and had purchased the said car under a mortgage-deed from one Vinodchandra Ramanlal Gohil of Surat for Rs. 14,000/ -. The customs authorities alleged in the complaint that from the facts and circumstances it appeared that these silver bars were the goods, export of which was prohibited under Section 3 of the Imports and Exports (Control) Act, 1947 read with Section 11 of the Customs Act, 1962. The silver under seizure was 'specified goods' because of the notification dated 3-1-1969 issued under Section 11 (1) of the Customs Act and thereby the other sections of the Customs Act were attracted. According to the prosecution, the accused had committed breach of the prohibition imposed under the Customs Act, 1962 and were liable to be punished under Section 135 of the Customs Act, 1962. It appears that though the silver bars were seized in 1969 November, the complaint before the Magistrate was filed only on March 14, 1974. By the judgment and order dated May 31, 1975 the accused were acquitted; An appeal against acquittal was filed and as a result of the decision in appeal in 1977, retrial was ordered and thereafter the learned Chief Judicial Magistrate heard the case and convicted and sentenced the accused as stated above. Against the decision of the learned Chief Judicial Magistrate, all the three accused filed one appeal, being Criminal Appeal No. 42 of 1978, before the Sessions Court and the appeal was disposed of by the learned Additional Sessions Judge, Broach, and the appeal was dismissed by the learned Judge. Thereafter Criminal Revision Application No. 91 of 1979 has been filed by accused No. 1 and Criminal Revision Application No. 92 of 1979 has been filed by accused Nos. 2 and 3, The learned Additional Sessions Judge has held that the goods were intended to be taken from Delhi to Surat and in these revision applications I will proceed on that basis that the destination of the silver bars was Surat, It is common ground before me that Broach is within the specified area contemplated by Section 11h of the Customs Act and that the silver bars were specified goods within the meaning of Section 11h. It is also not in dispute before me that Surat is also a specified area. There is no material before me either in the form of admission or any material on record to show that the route between Broach and Surat passes only through specified area. Under Section 11-K (1) "no specified goods shall be transported from, into or within any specified area or loaded on any animal or conveyance in such area, unless they are accompanied by a transport voucher (in such form and containing such particulars as may be specified by rules made in this behalf) prepared by the person owning, possessing, controlling or selling such goods. " It is not in dispute before me that no such voucher was carried by the three accused at the time when the car carrying the 48 silver bars was intercepted by the customs authorities at the northern end of Narmada Bridge at Broach, Under Section 135 of the Customs Act, "without prejudice to any action that may be taken under this Act, if any person, (a) is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect of such goods. . . " shall be punishable in the particular manner laid down under that section. The main question which has been agitated before me is whether the provisions of Section 11-K (1) were violated. Learned counsel for the respective petitioners, Mr. Trivedi and Mr. Hazari, have urged that the crucial word in Section 11-K (1) is "transported". They contend that the words "transport" and "transported" being in the concept of a point of origin and the point of destination it is the act of carrying the goods between the definite points of origin and destination that would amount to "transport" of goods or "transporting" the goods. In this connection, reliance is placed on the decision of a Division Bench of the Bombay High Court in Emperor v. Dagadu Shetiba 39 Bom LR 1062 : 39 Cri LJ 197. In that case the accused travelled from Jogeshwari near Andheri to Khed taluka in Poona carrying with him five drams of country liquor in an open bottle. To reach his destination he had to change trains at Dadar in Bombay. The accused was charged with an offence under Section 43 (1) (a) of the Bombay Abkari Act, 1878 in that he transported liquor from a lower to a higher still-head duty area, namely, Bombay, though the duty at his destination was the same. The quantity of liquor carried was within the limit prescribed in the two places had the same scale of duty. The Division Bench consisting of Sir John Beaumont, C. J. and Norman, J. held that transporting from one place to another did not involve transportation to every place between those two places and that the accused should not therefore be deemed to have transported liquor to Dadar in Bombay. At p. 1064, Beaumont, C. J. speaking for the Division Bench observed:

(2.) IN Atul Chandra Pal v. The State a Division Bench of the Calcutta High Court held that, in the context of transport of rice which was prohibited under certain orders under the Essential Commodities Act, transport of rice from a place in the border area to a place in the Eastern Zone outside the border area was not prohibited under Section 4 of the Rice (Eastern Zone) Movement Control Order and that Section 4 spoke of transporting from one place in the border area to any other place in that area and that that involved the question of destination. The use of the word "trans- port" connoted movement from one place to another and the mere fact that the normal route was along the border area did not either indicate that it was transported to another place in the same area, while the known destination was elsewhere, that is a place in the Eastern Zone outside the border area. To hold otherwise would be to hold that goods on transit were transported to every point between the starting point and its destination.

(3.) IN view of these three decisions and particularly in view of the decision in Emperor v. Bagadu Shetiba 39 Bom LR 1062 : 39 Cri LJ 197 (supra) which is binding on me, it must be held that the word "transport" in Section 11-K (1) means taking the goods or carrying the goods from a point of origin to a point of destination. Looking to the use of the words "from", "into" or "within" it is obvious that either the point of origin or the point of destination or both must be within the specified area and if specified goods are transported without any voucher in that behalf as contemplated by Section 11-K (1) of the Act, if it is meant for fraudulent evasion, would be punishable under Section 135 of the Customs Act. However, on the facts found by the learned Additional Sessions Judge, the point of destination was not Broach which was Within the specified area but it was Surat which was also within the specified area. The point of origin being Delhi which is within unspecified area or until the goods reached the point of destination, namely, Surat, in specified area, there would be no violation of Section 11-K (1) until the goods, namely, the silver bars, entered the specified area in which Surat is situated. Merely because en route Surat from Delhi the car carrying the silver bars passed through another specified area, namely, Broach, it does not mean that at Broach there was any violation of Section 11-K (1 ). The violation of Section 11-K (1) would occur if, (a) there was a continuous specified area from Broach to Surat, or, (b) after leaving the specified area of Broach the car entered the specified area in which Surat is situated. Until either of these two events occurred it cannot be said that mere presence of silver bars at Broach which is within the specified area in the course of journey from Delhi to Surat would constitute an offence because at Broach there being no point of destination in the specified area of Broach, there is neither transporting from, nor into nor within the specified area of Broach.