PRAKASH JAYANTILAL JHAVERI Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS is a petition under Article 227 of the Constitution of India and Section 482 of the Criminal Procedure Code, 1973.

(2.) THE 1st respondent who is the Assistant Collector of Customs has moved the Chief Metropolitan Magistrate, Esplanade, Bombay, with a complaint impleading thereto the petitioner, his father and one Himmat lal Jhaveri - the three to be hereinafter referred to as accused Nos. 3, 2 and 1respectively. Ascribed to them are the commission of offences punishable under section 135 of the Customs Act r/w. section 30 of the Dangerous Drugs Act 1930 and section 7 r/w 13 of the Dangerous Drugs Act, 1930. The complaint avers that on 5th or 6th of March 1985 the Custom Officers in the Export Examination Shed of the Air Cargo Complex at Sahar seized 400 kgs. of Hashish worth about Rs. 3 crores in the international market concealed in 30 cases of Diesel Engine Mountings meant for being exported to Holland. The Mountings and the Hashish were seized under a panchanama in the reasonable belief that the same were liable for confiscation under the Customs Act, 1962. The documents in relation to the export were examined and were found to have been presented to the Customs for examination by one Ramesh Iyangar, a Clerk of M/s. Eastern Shipping Agency. The statement of the said Ramesh was recorded and he gave out that the documents had been scribed by him on directions given by his master one Alok Seth. Alok Seth was contacted and his statement was recorded. From this person the Customs came to know of the connection of Vinod Seth and Anil Shroff with the transaction. Vinod Seth's statement indicated that Anil Shroff had utilised a telephone service facility provided by one Lakadwala. From other enquiries made by the Customs it was learnt that the Diesel Engine Mountings in which the Hashish had been concealed were manufactured by Shalimar Motors, a proprietory concern of one Manorath Singh Chandhok. Chandhok stated that the mountings had been got manufactured from him by one Satish Shah of Ahmedabad. It was found that Satish Shah and Anil Shroff were residing on the 3rd floor of Ratan building at Road No. 31 in Scheme No.6, Sion (East), Bombay -22. The premises were visited on 11.7.1985 by the officers of the Directorate of Revenue Intelligence. The flats bearing Nos. 13 & 14 were opened by accused No.2. Accused No.3 also appeared on the scene. Vinod and Alok Seth identified accused No.2 as the person they knew as Anil Shroff. The statements of accused Nos. 2, 3 and 1 were recorded. From the statement of accused No.2 it was learnt that he had acted on the directions of accused No. 1, who, had asked him to purchase Engine Mountings from the market; that this purchase was made by accused No. 2 through his son i.e. the 3rd accused; that accused No.3 had brought the Engine Mountings to his house; that accused No., 1 brought tin boxes filed with hashish to the house of accused No.1 at Sion and that hashish was packed in 30 wooden cases concealed in Diesel Engine Mountings at his house. Accused No.3 was also examined and from him it was learnt that he had contacted accused No; 1 on instructions given by his father the 2nd accused, that accused No.1 had shown him a sample of an Engine Mounting and asked to acquire 600 pieces thereof from the market for which trouble the 2nd accused was to receive a commission from the 1st accused, that accused No.3 agreed to carry out the task and with that object contacted Shalimar Industries and placed an order with them for 600 pieces of Engine Mountings. Later, on instructions received from accused No. 1, the number of pieces to be acquired had been reduced to 400 and Shalimar Industries had been given an advance of Rs. 5,000/ -. This amount was given to him by accused No. 1 who also gave him a further sum of Rs. 15,000/ - at a later stage. From out of the sum of Rs. 15,000/ - accused No.3 retained Rs. 2,000/ - as his commission, making over the balance of Rs. 13,000/ - to the Shalimar Industries in final settlement of their bill. He did not take a bill from Shalimar Industries as he had been advised, by the 1st accused that taking a bill would entail payment of sales tax. Some two or three days after the payment of Rs. 13,000/ - to Shalimar Industries, he had returned to his native place which was Palitana in the State of Gujarat. A month thereafter he had returned. He had no knowledge as to why the Diesel Engine Mountings were required and was completely unaware of the purpose of the mountings being to serve as a receptacle for hashish to be exported out of India. Accused No. 2 -in his statement gave out that hashish had been packed in the mountings by him with the assistance of accused No.3 and at the bidding of accused No.1. The proprietor of Shalimar Industries was questioned and he spoke of having been approached by one person in February 1985 who gave himself out to be Satish Shah of Ahmedabad. The said person placed an order for 600 pieces of Engine Mountings and provided him with an advance of Rs. 6,000/ -. The advance was paid in cash .From time to time Satish Shah or someone purporting to answer with that name rang him up at his shop to enquire whether the goods were ready. The said Satish Shah gave him to understand that he was calling from Ahmedabad. When 400 pieces were ready, Satish Shah was so informed and it was then that Satish Shah gave him the direction to cancel the order for the remaining 200 pieces. On or about 20.2.1985, Satish Shah came to his shop and accepted delivery of 400 pieces of mountings. Each of these was packed in cardboard cartons with a plastic covering inside. The balance of Rs. 12,240/ - was paid in cash. The mountings were packed in 20 wooden cases for which Chandhok charged an extra sum of Rs. 320/ -, At the request of the purchaser, a tempo was fetched. The goods were loaded in the tempo. Satish Shah gave out that he would be first taking the goods to Sion and from there to Gujarat at his own good time. An employee of the Shalimar Industries. Pritam Singh, got a lift from Satish Shah as Pritam Singh wanted to go to Ulhasnagar via Sion. Satish shah was described as a person below 30 years of age, medium built, 5' -8" in height and wearing a pant and bush shirt. Chandhok said that he would be able to identify Satish Shah if that person was produced before him. A copy of the bill showing the transaction was shown to the Officer who recorded the statement of Chandhok. After 20.2.1985 Chandhok had never seen Satish. The 3rd accused in his statement said that in February 1985 his father, the 2nd accused, sent him to the 1st accused who was a friend of his father. The 2nd accused gave him to understand that the 1st accused had a task to assign to him. On receipt of the direction from his father, accused No.3 had gone and met accused No.1 at his shop which was neaer the Opera House. Accused No.1 gave him a sample of an Engine Mounting and directed him to search out 600 pieces like the sample given to him from the market, for which accused No.1 promised a commission to the 3rd accused. Accused No.1 gave out that he had a large order for Engine Mountings from an Ahmedabad party. The name of that party appears to have been made known to the 3rd accused for in his statement accused No.3 said that he could not recall the name of the said party at the time his statement was being recorded. Accused No.3 made enquiries in the market and located shalimar Industries as the sort of concern which could supply him the required quantity. On being approached shalimar Industries made it clear that they did not have a ready stock, but could manufacture the same for which they required an advance of Rs. 5,000/ -. Accused No.3 went back to accused No. 1, took a sum of Rs. 5,000/ - from him and passed it to Shalimar Industries as an advance for the manufacture and supply of 600 pieces of Engine Mountings. Some 3 to 4 days later accused No.1 asked the 3rd accused to reduce the number of mountings to 400. This message was passed on by accused No.3 to Shalimar Industries. A sum of Rs. 15,000/ - was obtained from accused No. 1 by accused No.3 who was told by the 1st accused to retain Rs. 2,000/ - as his commission and payoff the balance sum of Rs. 13,000/ - to Shalimar Industries. The Engine Mountings were to be taken by accused No.3 to his own house where he was to give the same to his father accused No.2. As requested the task was carried out by the 3rd accused. No bill was taken by him in view of the direction given by accused No. 1 as the taking of a bill would entail payment of sales tax, making which payment was not to the liking of the 1st accused. Shalimar Industries arranged a tempo for the transport of the mountings from their concern to the house of accused No.3. Accused No.3 had the goods unloaded at his home. The transport charges and the cost of the wooden cases were paid separately to Shalimar Industries by accused No.3. An employee of Shalimar Industries was given a lift by him in the same tempo upto Sion. A specific question was put to accused No.3 as to his awareness about accused Nos. 1 and 2 conspiring to smuggle hashish and using the consignment of Engine Mountings as a camouflage for that purpose. The reply given was a specific denial and worded thus:

(3.) THE retracted confession of accused No.2 is something in the nature of a broken reed and this is not disputed by learned Counsel representing the complainant. What remains are the statements of the 3rd accused and Chandhok coupled of course with the surrounding circumstances. Now Chandhok does not anywhere say that Satish Shah of Ahmedabad who had come to him on 10th and 12th February 1985 and who had spoken to him on phone in between the two dates, is accused No.3. In fact Chandhok in his statement had given out that he would be in a position to recognise the said Satish Shah if the said person was placed before him. Apparently no such confrontation was arranged. Complainant's Counsel is right in his submission that even if this was not done Chandhok could be asked to make the identication at the time of the trial - But that will not solve the problem, for even if accused No.3 is identified as Satish Shah of Ahmedabad, who had placed an order, made the payment and taken delivery of the engine mountings, that will not further the case of the prosecution. This would also bear out accused No.3' s version that he was acting in pursuance of the instructions given to him by the 1st and 2nd accused which instructions by themselves were innocent enough and on which instructions he had no reason to suspect as being the plan devised for export of prohibited drugs from this country to a country on the continent of Europe. There is of course the allegation that accused No.3 used a false name and address to place the order with Shalimar Industries. But this was the instruction given to him by accused No. 1 and accused No. 1 is said to have been anxious to save the liability to pay sales tax. At the most the 3rd accused may be said to be a coconspirator of accused No.1 in the design to evade payment of sales -tax. That is not the charge which the 3rd accused is facing. A complaint of that nature has not been lodged against either accused. The next piece of guilty circumstance said to incriminate the 3rd accused is his bringing 400 pieces of engine mountings to his own residence. But I do not see how this could be considered as an incriminating circumstance. The person giving him the direction was a person whom he knew as a friend of his father. To this friend of his father he had been sent by no less a person than his own father. It is not natural for any son to look askance at the directions given by his father or the father's friend. The instructions given by accused Nos. 1 and 2 were innocent enough in themselves. It can be argued that there was no need for accused No.2 to suggest that accused No.3 approach accused No.1 or for accused No.1 to assign to accused No.3 the task of finding out a party who could execute a large order as one for the supply of 400 pieces of engine mountings. Now accused No.3 describes his profession as that of broker in diamond trade. Possibly the profession was not very lucrative, and when told of accused No.1 having an assignment for him, accused No.3 may have surmised that his father's friend was out to do him a good turn. There is nothing wrong in so assuming and that cannot be a circumstance incriminating against the 3rd accused. As to the transport of the engine mountings to his own home at Sion, I again see nothing amiss in that. After all the father was interested in the mountings and that is the impression accused No. 3 must have got from the directions given by accused No.1. The most telling circumstance visa -vis the innocence of accused No.3 comes from his contention that he would not have given a lift to an employee of Shalimar Industries had he been privy to the guilty knowledge of possibly his father and the 1st accused. If accused No.3 was aware of the uses to which the mountings were to be put, the last thing he would have done would have been to leave a clear trail to himself. After all it is not as if the person given the lift was sent by Shalimar Industries with the tempo which carried the engine mountings. The employee of Shalimar Industries was given a lift at his own request and that was with a view to enable him to reach his destination at Ulhasnagar faster. Being the son of one engaged in the drug -peddling does not mean that the son is also a drug -peddler. Disagreeing with the learned Magistrate, I hold that there was no material to warrant the issue of process as against the 3rd accused. Petition succeeds and the issue process order as against the petitioner is hereby quashed. Rule in these terms made absolute. Petition allowed.