ICCHALAL SUKHADEO Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been filed against an order of the Presidency Magistrate, Special Court No. 2, Esplanade, Bombay, convicting the appellant under Section 167 (81) of the Sea Customs Act, 1878, and sentencing him to rigorous imprisonment for 12 months. At the relevant time the appellant was an employee in a firm of bullion merchants carrying on business under the name "messrs. Ambalal Amichand and Co. " One Ambalal Amichand was a partner of the firm. On the morning of 14th December 1960, the appellant went to the residence of Ambalal Amichand and came out after about 10 minutes. On account of some information which had been received, a Preventive Officer had kept a watch on the residence, and some time after the appellant came out of the residence, he was accosted by the Preventive Officer. It Was found that the appellant had a jacket under his single, and in that jacket he was carrying four packages of 25 bars of gold each, each bar weighing 10 tolas. When questioned about the source of the gold, the appellant stated at first that the gold was given to him by a stranger, but later on he made another statement to the effect that his employer, Ambalal Amichand, had sent him that morning to his residence and that the wife of Ambalal Amichand had given him the gold for the purpose of being carried to the shop of the firm. The gold was confiscated under Section 167 (8) of the Sea Customs Act, 1878 and thereafter the appellant was prosecuted for the offence defined by Section 167 (81) of the Act.

(2.) ON the evidence led before him, the learned Magistrate was satisfied in the first place that the gold which was being carried by the appellant was smuggled gold, that is to say, it was gold which had been imported into India contrary to a notification by which the impart of gold was restricted, and also that the gold was imported without payment of the import duty prescribed by the Indian Tariff Act, 1934. The learned Magistrate was also satisfied that the appellant knew that the gold which he was carrying was smuggled gold. On these findings the learned Magistrate held that the offence defined by Section 167 (81) of the Sea Customs Act, was established against the appellant.

(3.) ON behalf of the appellant Mr. Porus Mehta argued before us that even if it were assumed that the appellant in this case was in possession of smuggled gold and that he knew that it was smuggled gold, even then the appellant could not be convicted under Section 167 (81) unless the intent specified in that provision was proved against him. In order to appreciate the argument of Mr. Porus Mehta, the relevant part of Section 167 (81) may be quoted :