LAXMAN PADMA BHAGAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) CRIMINAL Appeal No. 1759 of 1963, is preferred by original accused No. 5 -Laxman Padma Bhagat : Criminal Appeal No. 53 of 1964, is by Haroon Haji abdulla, original accused No. 8 : and Criminal Appeal No. 1 of 1964, is by Ayub kassim Kika. Original accused No. 9. These three appeals can be disposed of by one judgment. They arise out of the judgment of the learned Presidency magistrate, 19th Court. Esplanade, Bombay, where the aforesaid three appellants along with 15 others were put up for trail. Out of these 18 accused, accused No. 17 was discharged accused Nos. 14, 15 and 18 -Haji Mahamed Barkati, Haji sattar and Yusuf Habib had been absconding, and therefore their cases were separated, original accused No. 4, Noor Mohamed Alu Bhati was jointly tried along with the remaining accused, but on the date of the judgment, it was found that he had absconded, and. , therefore, his case was separated/ Accused No. 1 Govind narayan Bengali, who was jointly tried, died after the close of the case but before the pronouncement of the judgment. Accused Nos. 11, 12, 13 and 16 -Shankar aitwar Koli, Usman Saleh, Adam Budda and Gulam Nabi have been acquitted.

(2.) IN short, as a result of the judgment only 8 of the accused, namely, accused nos. 2, 3, 5, 6, 7, 8, 9 and 10 have been convicted of offences under section 120b. Indian Penal Code, for having conspired to smuggle gold into India without a valid permit and thereby evading duty payable thereon, and to evade the prohibition enacted in this matter by notifications made under certain various enactments. Only accused Nos. 5, 8 and 9 have appealed.

(3.) THE following facts are no more in dispute, and there is ample evidence establishing them. In April or May 1961, Police Inspector Mr. Bhesadia (P. W. No. 30) attached to the Anti-Corruption and Prohibition Intelligence Bureau, Bombay, received certain information about smuggling operations, and he took certain measures to pursue the information and to arrange for watch. On 13th of August 1961, he received certain information at his residence in Dhobi Talao that smuggled gold was likely to be landed at Versova beach the same night. He, therefore, went to Madh Island at about 4 p. m. in a police car driven by one rajaram Sawant, the police driver. At about 8-40 p. m. , he received information that the smuggled gold was to be landed at Versova Beach. He, therefore, proceeded in his car from Madh Island to Versova beach reaching there at about 9-3- p. m. On reaching the beach, he recerved further information as a result of which he went to the house of Govind Narayan Bengali, the first accused in this case. The house of this Govind is situate in a locality at Versova known as Tare gally which is close to the Versova beach. The house consists only of one room and a verandah. As Mr. Bhesadia and his driver Rajaram approached the house, the door of the house from outside, kept Rajaram on guard at the dorr, and rushed to the window, the only other opening of the room. At the time, one Ismail tharu was trying to escape through the window. Bhesadia pushed him, in, called rajaram and put him on guard at the window, and then opening the door, entered the room, where he found Govind, accused No. 1, his brother Dharma Narayan accused No. 2, his cousin Bhaskar Bhavan Pedhe accused No. 3, Ismail Tharu, a foreigner, and Kashinath, the first witness in this case, P. W. No. 1. Accused Nos. 1 to 3 and Kashinath are fishermen residing in the village Versova. Ismail is a foreigner. Bhesadia also noticed that there was a heap of small gunny bags in a corner of the room. He further found that the gunny bundles were wet and were heavy, he surmised that the gunny bags would contain smuggled gold. He, therefore, sent Rajaram to fetch panchas. Rajaram brought three panchas including panch Minoo Fitter (P. W. No. 12 ). One of these persons was sent back to bombay to inform at the houses of the two panchas remaining behind that they had been detained. Bhesadia questioned the inmates of the room. He offered his own search and the search of the panchas but that was declined by these persons. The Bhesadia took the search of the persons of all the five persons in the presence of the panchas. Nothing was found on the four, fishermen, but on the person of the foreigner, that is, Ismail, he found a plastic purse containing Rs. 75 in red currency, Rs. 293 in Indian Currency notes, one envelope and a letter in Gujarati (Exhibit S ). This letter is written in code words containing also some figures. The articles were returned. Bhesadia also in the presence of the panchas searched the room as well as the cupboard in the room, but it contained only certain personal papers of the accused No. 1. Bhesadia then sent of the accused No. 1. Bhesadia then sent Rajaram out of search whether any car was waiting to take away the smuggled gold in view of the answers he received from the suspects. Rajaram returned after about an hour and half, by about 11-30 a. m. , and reported that he was not able to find any car. Bhesadia again sent Rajaram to phone to his (Bhesaida's office and latter also asked Rajaram to ring up the customs people, as well as his superior officer, one Police superintendent Shete. In response to the telephone messages, Sub-Inspector Lagli, Sub-Inspector Soman and sub-Inspector Kulkarni arrived a little before 2 a. m. Kulkarni was kept one guard, and the other two Sub-Inspectors were sent for making confidential inquiries. At about 2. a. m. ,. Assistant Collector of Customs, Mr. Jokhi, an officer of the Central Excise, randive, Deputy Superintendent of Central Excise (P. W. No. 22), and some other officers of the Central Excise Department arrived. Bhesadia apprised them of the detection of the contraband and the suspects found in the room. Therefore, Jokhi and Randive interrogated these five persons, each one separately, by taking them out of the room. It is the prosecution case that each one was taken by Jokhi and randive to an adjoining hut at some distance from this house. The questioning continued till about 5-30 a. m. Mr. Warty (P. W. No. 28), Superintendent of the central Excise by that time arrived along with some other excise officers. It is under the supervision of Mr. Warty that further inquiries in the case have been made Mr. Warty also interrogated these persons in the hut till about six or 6-30 a. m. of the 14th of August 1961. Thereafter, the seventeen bundles inside the room were brought on the verandah adjoining the room, and Mr. Warty proceeded to prepare the panchnama of the property contained in these 17 bundles. The bundles were opened in the presence of the panchas one after another, and it was found that each bundle contained two jackets, each one having small packets stitched inside, in each of which was concealed one gold slab weighing about ten tolas. The slab was of the shape of a biscuit. The gold slabs had marks of foreign refineries thereon. When the total gold found in the 17 bundles was counted, it was found not to tally with the total number of figures contained in the letter (Exhibit S) found on the person of Ismail. Mr. Bhesadia surmised that the figures on the letter represented the weight of the gold. He, therefore, further interrogated in this respect and thereafter Kashinath pointed out the 18th bundle of gold lying in the sand behind the house of Govind, accused No. 1. The bundle was half buried in the sand. The bundle was brought and the gold found in it was similarly concealed in the jacket which was counted. The total number of tolas tallied with the total of the various figures in the letter. The foreign gold smuggled weighed 35,730 tolas valued at Rs. 50,02,200. The smuggled gold is Exhibit "z31" in this case. The gold was sent under armed guard to the Central Excise office in six trunks brought there by Mohandas, another Deputy Superintendent of central Excise (P. W. No. 29 ). On inspection of this gold in the Mint, it was found of the purity of 999. the preparation of the panchnama continued from 6-30 in the morning till 5 p. m. The panchnama (Exhibit N) prepared in the presence of the panchas is dictated by Warty and was taken down by Mr. Gupte, another Excise officer, Exhibit N is signed by Mr. Warty and by Bhesadia. It is also signed by accused No. 1 Govinda from whose house the property had been seized, as well as by Kashinath, the first prosecution witness in this case.