AMBALAL CHIMANLAL CHOKSHI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS revisional application raises a question of inadmissibility of certain statement made by the petitioners - accused to the Central Excise officers, on the ground of immunity claimed under sub - clauses [3] of Article 20 of the constitution of India. The relevant facts giving rise to the objection taken by the petitioner - accused admissibility of his certain statements under Article 20 [3] of the constitution may be stated: The petitioners Ambalal Chinmalal Chokshi is being prosecuted on a complaint being filed on 19-12-1963 by the respondents [shri H. R. Jokhi, Assistant Collector of central Excise, Marine and Preventive Division, Collector of Central Excise, Bombay], for an offense under Rule 126p of Part XII - A of the Defence of India Rules, 1963 [which part contains 'gold Control Rules"] and section 135 [b] of the Customs act, 1962 [ Act 52 of 1962]. The allegation made against the petitioners is that he had acquired possession and was concerned in carrying removing, harbouring, keeping, concealing and otherwise dealing with smuggled gold and that he had not made any declaration about the said gold and had no permit as required under the Gold Control Rules. Before the complaint was filed on 19th December 1963, by the Respondents for the alleged offence said to have been committed by the petitioners, on 5th April 1963, written search Authorization [ex. A] under Rules 126 [1] [2] of the Gold Control Rules was issued by the superintendent waghs of the Central Excise, central Intelligence Unit, Bombay in Favour of Shri V. B. Rane, Deputy superintendent of Central Excise [preventive and Marine Division, Bombay], Authorizes in the latters officer to enter and search certain premises being the flat to enter and search certain premises latter being the flat of the petitioners in building called 'neeta' at 90 Marine Lines, behind Marine Lines Railway station Bombay for the said gold and if found to seize and produce the same before the superintendent and in pursuance of its search authorization, the aforesaid premises of the petitioners were raided to and during the course of outside such raid some gold was found on ledge outside the balcony of one Kotak on the 1st floor and a bag containing currency notes and some other documents was found from the and some other documents was found from the balcony of the one Modi by the side of the balcony of the petitioner on the 2nd floor. A search of the petitioner flat was also conducted and some documents and the property along with the aforesaid gold and the bag of currency notes were seized under a panchnama [ex. O], which was made at the Spot. It appears that the petitioners was interrogated by Shri Rane, Deputy superintendent of I respect of the said gold as also the bag of currency notes at the time of the making of the panchnama and the statements made by the petitioners were incorporated in the Panchnama. It may be stated at this stages that as regards the gold [12 slabs] found outside the Balcony of Kotak on the 1st floor the petitioners stated that he same did not being to him or any body in his house or family and that he did not know anything's about it. , while regarding the currency notes found in a bag, which was recovered from the balcony of Modi which was by the said of the balcony of the petitioners, the petitioners claimed that the money belonged to him together with the other contents of the bag and the he further stated that the cloth bag had been put by him in his neighbor's flat across the balcony and with out the knowledge's of Mr. Modi when the officers went of search. Later on the Central Excise officers summoned the petitioner and detailed statement of his was recorded by Deputy superintendent parekh under instructions of superintendent wagh, who interrogated the petitioner under the power vested I by law, with regard to the gold and the bat containing currency notes, the petitioners gave his version in his detailed statement recorded in this occasion which was almost similar to that which he had given at the time of marking of the panchnama.

(2.) AFTER completing the investigation, the Respondents filed a complaint on 19th December 1963, against the petitioner for the alleged offenses mentioned above, being Cases No. 62 / W of the 1964, the trial where of is being conducted by the learned additional Chief Presidency Magistrates, 8th court, Esplanade, Bombay. After fully setting out the manner in which the search of the petitioners premises was carried out as also the circumstances in which the gold and the bag containing the currency notes were recovered during the raid and the statement made by the petitioners, in connection therewith, the respondents categorically averred in his complaint as follows:-

(3.) AT the outset Mr. Gumstate, the learned additional Government pleader, raised a preliminary objection against the maintainability of the revisional application on the ground that the order complained by merely decides the question of admissibility o merely or otherwise of certain evidence at a trial which is still pending before the learned magistrate and he therefore urged that at such interlocutory stage this court shouldn't interfere with the order passed in exercise or revisional jurisdiction. he further pointed out that the order of the learned Magistrate dealt with procedural points by overruling the objections raised by the petitioners to the admissibility of certain statement and it would not only be open to the petitioner but would be proper for him to raise these point in appeal after the trail before the learned Magistrate is concluded. On the other hand Mr. Porus Mehta contended that one of the objections raised to the admissibility of the evidence pertaining to the fundamental right guaranteed to a citizen under article 20 [3] of the constitution and therefore it was but proper for the petitioners to approach this court at the earliest possible opportunity for vindicating his said right Mr. Mehta fairly for conceded that the objections to the admissibility of the evidence and the statement in question under section 25 of the evidence act and section 162 of the Criminal procedure code, may be regarded as procedural and he would not be in position, to ask this court to interfere but with the trial could order on those grounds but since the objection to the admissibility of the statements under Article 20 [3] of the constitution had been raised before the court and had been decided against his client by the trial court he should be permitted by the argue that point and this court would be perfectly justified in deciding that point as in exercise of its revisional jurisdiction. I accepted the contention of Mr. Mehta in this behalf and I allowed him to argue of the point in so far as the objection the admissibility of evidence was based upon the provisions of article 20 [3] of the constitution only. I must mention here that Mr. Mehta was not allowed by me to raise objections to the admissibility of evidence in question under section 25 of the evidence act and section 162 of he criminal procedure code.