DAUJI AGRAWAL Vs. UNION OFINDIA

JUDGEMENT

(1.) THIS revision has been preferred by the applicant challenging his conviction under Section 135 (b) (2) of the Customs Act for having been found in possession of 13 bars of 10 totals each of cantraband gold. By the said judgment the applicant was sentenced to undergo rigorous imprisonment for a term of one year.

(2.) THE applicant was convicted on a complaint filed by the Assistant Collector Central Excise, Allahabad. THE allegations on which the complaint was filed were that on June 2, 1966 a Mobile Preventive Party of the Gold Cell was deputed on the Railway Station, Allahabad for checking passengers and their belongings in order to recover smuggled articles. On the said date the Mobile Party consisting of S. P. Bakshi, Deputy Superintendent, Central Excise, H.S. Chow fin, Inspector, Central Excise, N. K. Das, Inspector and a Constable had gone to the Railway Station for checking the passengers of the Bombay Howrah Mail which was scheduled to arrive at the Railway Station at 9 p.m. THE said Bombay Howrah mai? arrived at the Railway Station at about 9 p.m. While the aforesaid officers were on duty, they noticed the applicant moving in suspicious manner. Entertaining suspicion the officers entered in to the same compartment in which the applicant was sitting. THEy found that a holdall had been opened on a seat on which the accused-applicant and a lady were sitting. On enquiry from the lady they were told that the holdall did not belong to her. She thereafter got up from the holdall and sat on the opposite berth. THE accused, however, admitted that the holdall belonged to him. THE officers thereupon disclosed their identity and after having procured the two independent witnesses, namely, Prabhat Kumar Paul and Shri Uma Shanker they took the search of the accused applicant and his belongings. From the search of his holdall on which the accused-applicant, was sitting 13 bars of foreign gold, each weighing 10 tolas were recovered from the pocket of the inside jacket which belonged to the accused-applicant and which had been roped up inside the body. Ali the bars were marked with the endorsement showing them to be foreign gold. THEreupon a recovery memo was prepared on the spot which was signed by the witnesses pre-sent and the accused-applicant. THE accused-applicant could not also produce any permit for carrying or being lawful possession of the did gold from the Reserve Bank of India or any other competent authority. He said not also have any import licence in his possession. On interrogation the accused-applicant admitted that the gold bars belonged to him. After the conclusion of the confisaction proceedings the pre-sent complaint was filed for the prosecution of the applicant for the offence under Section 135 (b) of the Customs Act and Section 85 (ii) of the Gold Control Act.

(3.) SHRI S. N. Mulla, counsel appearing for the applicant raised two points in support of this revision. The first point was that the prosecution failed to establish beyond reasonable doubt that the holdall from which the gold bars were recovered belonged to the accused-applicant and, therefore, the conviction of the applicant is illegal and liable to be set aside. In this connection he also pointed out that at the time when the Officers of the Central Excise Department entered in to the compartment, admittedly a lady was sitting on the holdall and that the possibility of the holdall being that of the lady who was sitting on the same could not be ruled out. On this basis he urged that as the prosecution failed to produce evidence clinching that issue that the holdall belonged to the accused-applicant, the conviction of the applicant cannot be sustained. I have already noted above, the witness were produced from the side of the prosecution to prove that the holdall belonged to the accused-applicant. Apart from the above, in the statement contained in Ex. Ka. 2 it was clearly admitted by the accused-applicant that the holdall, which contained the jacket and from which the gold bars were recovered, belonged to him. This statement of the accused-applicant admitting that the holdall and the jacket belonged to him established beyond all reasonable doubt that he was in possession of the gold bars which were found from the holdall on the aforesaid date. It was argued in the courts below as also before me that the statement of the applicant was not voluntary and that he was coerced to give the same. There is absolutely no sustance in this submission of the learned counsel for the accused-applicant as nothing could be shown from the cross-examination of the witnesses produced by the prosecution which could show that the statement contained in Exb. Ka. 2 was not voluntary. The court below also held, in my opinion rightly, that the statement of the applicant was recorded after the recovery and was a voluntary statement. This statement sets at not the submission made by the learned counsel for the applicant. . 6. It may be noted in this connection that the statement given by the accused applicant to the Customs Officers is admissible in evidence as they would not be considered to be police officers for the purposes of Section 25 of the Evivence Act. In State of Punjab v. Brakat Ram (A. I. R. 1962 S. C. 276. A-25), the Supreme Court held that the statements given by accused persons to the Coustoms Officers are admissible in evidence. This view of the Supreme Court was subsequently followed by the latter decision in Soni Balldbhdas Liladhar v. Assistant Collector of Customs Junagath. (A. L R. 1965 S. C. 481.) In the present case, I am satisfied that Exb. Ka. 2 was given by the accused to the customs officers voluntarily and that the same is not hit by the provisions of Section 25 of of the Evidence Act as these Customs Officers were not police officers within the meaning of Sec. 25 of the Evidence Act. Accordingly, the first submission of the learned counsel for the applicant that the gold bars had been planted by the lady sitting on the holdall and that it did not belong to the accused-applicant has no substance. 7. It may, however, be stated at this place that the question as to whether the gold bars belonged to the accused-applicants and that the prosecution could successfully prove the same is one of fact. The finding on his question was given against the accused-applicants by the courts below after considering the entire evidence brought on record. It is not open to this court in this revision to set aside the finding recorded therein acting as a court of appeal. The finding of the court below, therefore, on this point is no assilable on this reasoning as well. 8. SHRI J. N. Agarwal, who also appeared with SHRI S. N. Mulla, counsel for the applicant urged that a number of applications were filed on behalf of the accused-applicant in the trial court for summoning of certain papers and as those applications were rejccted arbitrarily and illegally, therefore, the order of the trial Magistrate convicting the applicant is liable to be set aside. In this connection reference was made to certain applications which had been filed by the advance on behalf of the accused-applicant before the learned Sessions Judge in the appeal as well. This was repelled by the learned Sessions Judge on a number of grounds. I have considered those grounds and have also per-sued the record of the trial court in that respect. I am in complete agreement with the view of the learned Sessions Judge that the rejection of the applications made by the accused-applicant for summoning papers from the customs authorities is not erroneous requiring interference in these proceedings. It appears that apart from the prayer for summoning those papers, the accused-applicant had finally filed the copies of these papers which are judgments of the customs authorities for the purposes of establishing that he was not guilty. The learned Sessions Judge examined those papers and found that these papers did not support the case of the applicant. The finding of the learned Sessions Judge on this point appears to be correct and it is not possible to take any exception to the same. I have also persued those papers and found nothing in them which could show that the conviction of the applicant is vitiated. Specific reference was made by the learned counsel for the applicant to the paper headed as "Record of Personal Heading" dated 24-6-1968 where in it has been recorded". It was pleaded that there was the prohability that the lady on seeing the Customs Officers put the contraband gold inside the bedding in partie's absence to elude detection. It the face of such a probability exclusive possession of the party cannot be said to have been established beyond doubt." Counsel for the applicant urged that the aforesaid finding of the Collector; Customs and Central Excise demonstrates that the gold bars had been planted by the lady and that the applicant could not be said to be in exclusive possession of these gold bars. What is worthy of being noted is that the papers relied upon is not the finding of the Collector, Central Excise and Customs. It only records the arguments which had been advanced by Sri S. S. harma, Advocate appearing on behalf of the applicant on June 24, 1968. In fact, the case was disposed by the Collector subsequently by the order dated 23rd November, 1968. By that order the Collector clearly found that the holdall from which the gold was recovered belonged to the accused-applicant. Accordingly even if it be assumed that the trial court committed an errosion not summoning the papers prayed for by the applicant, the same did not prejudice the accused-applicant and, therefore, the judgment of the trial Magistrate holding the applicant to be guilty of the offence is not liable be set aside. 9. Apart from the above, it may further be noted that the present Criminal Proceedings had to be decided in accordance with the evidence given by the parties in the present case. It had nothing to do with the findings recorded by the Collector, Customs and Central Excise in the confiscation proceedings. Accordingly, even if there was some finding of the Collector, Central Excise, which is of, course not there, in favour of the accused-applicant, the same would not have helped him in obtaining acquittal. 10. The only other point that re-mains to be considered and that was urged by Mr. S. N. Mulla, counsel appearing for the applicant was that was the accused-applicant was 14 years of age at the time of the commission of the offence, therefore, he was entitled to the benefit of Section 29 of the the U. P. Children Act. Counsel urged in that connection that the authorities did not deliberately start prosecution of the accused-applicant in 1966 as they knew that the accused-application in that event would not have been sent to jail. Counsel contended that the authorities cannot be permitted to deprive the applicant of the benefit of Section 29 by adopting this method of having filed the complaint after the accused-applicant had attained majority. The submission made assumes that the accused applicant was child within the meaning of that word as defined in U. P. Children Act, Exb. Ka. 2, the statement made by the accused-applicant on 2nd June, 1966 shows that he was aged about 20 years on the date on which the aforesaid statement was made by him. In order to attract the provisions of the U. P. Children Act it has to be proved that the person claiming the benefit is below 15 years of age. Assuming all other facts in favour of the accused-applicant, the applicant being 20 years of age on the date of the commission of the offence was not entitled to get the benefit of U.P. Children Act, 1951. Counsel for the applicant, however, drew my attention to the statement made under Section 342 Criminal Procedure Code and pointed out that the age given by the accused-applicant was 20 years. On the basis of this statement, too; it was urged that the accused-applicant was a child within the meaning of that word as used in U. P. Children Act, 1961 in 1966. I am not prepared to place reliance on the age given by the accused-applicant in his statement under Section 342 Criminal Procedure Code. There was no motive in the accused-applicant not to have given his correct again 1966 whereas there is every motive for him to have given his age incorrectly in the statement made under Section 342 Criminal Procedure Code. It may also be noted that the proper stage at which the benefit of U. P. Children. Act should have been claimed by the accused-applicant was that in the trial court. The applicant did not do so. Having not done it in the trial court he is not entitled to claim the same in the present revision. 11. Moreover, the plea of the benefit of Section 29 is liable to be repelled on another ground, the same being that in order to get the benefit of Section 29 of the Children Act, a person must be a child on the date on which application oral or written is made for extending the benefit of Section 29 of the Act. The date on which the offence is committed is not relevant for the purposes of Section 29. Accordingly, the benefit of Section 29 cannot be given to the accused applicant. 12. In the result the revision fails and is dismissed. The applicant is on bail. He shall surrender to his bail bonds failing which he shall be taken into custody and sent to jail to serve out his remaining sentenc. His bail bonds are cancelled.