HARBANSINGH SARDAR LENASINGH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal filed by two accused persons who have been convicted by the Additional Sessions Judge, Thana, of offences relating to the illegal importation and possession of 6920 Tolas of gold, under Section 135 of the Customs Act 1962 as well as under Section 23 of the Foreign Exchange Regulation Act, 1947. It may be mentioned that the accused were also charged under R. 126-P of the Defence of India (Amend- ment) Rules, 1963, but were acquitted of that offence.

(2.) THE facts of the prosecution case are that one Jokhi who was, at the material time, an Assistant Collector of Customs, at Bombay, received some information on the night of 21st March 1965 that gold was going to be smuggled into India from a place near the bridge on the Bassein Vajreshwart Road, that he, therefore, contacted witness Wagh who was then working as Deputy Superintendent under him, and the said Jokhi, accompanied by Wagh and two inspectors named Jadhav and Surti and a constable of that department, left Vadala at about 10 p. m. and reached Bassein at about 1-30 a. m. , that they stopped their car near railway crossing along the Bassein-Vajreshwari Road, and stopped facing Vaireshwari side, after putting off the head-lights, somewhere near the wicket-gate of the level-crossing about 4 or 4 and half furlongs away from Bassein Station, that at about 2 a. m. they saw a car coming from the Vaireshwari side which came near the bridge and turned a little and put off its lights and went on to the kachcha road leading to the salt pans, that the Said car turned again and came towards the bridge, but halted after going off the road, that the said car waited there for about 10 or 15 minutes whereupon the raiding party started their vehicle to go to see what the matter was, that in the meantime that car had come on to the main road and the raiding party, therefore, intercepted the car by placing their own car across the road, and that all the persons from the raiding party then, got down and went up to that car. The prosecution story is that, apart from the driver who was at the wheel of that car, accused Nos. 1 and 2 were sitting on the rear side, that Wagh and Jokhi questioned them as to why they had come there,' and in the beginning they did not give any reply, but later on accused No. 2 stated that there was gold in the dicky of the car and that the raiding party then opened the dicky and found that there were four gunny bags which were wet and soiled and were heavy. The prosecution story further is that Jokhi then sent Wagh to get two panchas from Bassein Town which he did and the dicky was opened and the gunny bags shown to the panchas, as also the marks of the tyres on the kachcha road along which that car had proceeded, as already stated above, but Jokhi and Wagh ultimately decided that it would not be safe to open the bundles and make a panchnama in a lonely place like the one in which they were, and they, therefore, decided that they should go to their office in Bombay with the panchas where the property in question should be opened and taken charge of under a panchnama. Inspector Surti, Jadhav and Assistant Collector Jokhi sat in the car in which the accused were travelling, and the rest of the raiding party proceeded in their own car and the two cars reached Churchgate at about 9 a. m. The said bundles were then opened in the presence of the panchas and were found to contain 6920 Tolas of gold with foreign markings and the panchnama which was made was concluded at about 2 p. m. on the 22nd of March 1965. The said bundles of gold, together with the car, were then sent to Superintendent Robb who took investigation of the case, he being the officer authorized to record statements under Section 108 of the Customs Act, 1962. He first recorded the statement of the driver of the said car Bapu. and thereafter at about 4 p. m. he started recording the statement of accused No. 2 which he concluded at about 5 p. m. He then proceeded to record the statement of accused No. 1 and finished recording the same at about 6 p. m. Superintendent Robb then placed accused Nos. 1 and 2 under arrest and sent them to the Azad Maidan Police lock-up, and they were put up before the Chief Presidency Magistrate the following morning viz. on the 23rd of March 1965. The Chief Presidency Magistrate having directed that the accused should be put up before the Judicial Magistrate, First Class, at Bassein, as the offence had been committed there, they were produced before that Magistrate and remanded into magisterial custody. The formalities of sanction and other formalities having been gone through, accused Nos. 1 and 2 were thereafter prosecuted and were convicted by the trial Judge, as already stated above, and were sentenced to three years' rigorous imprisonment for the offence under Section 135 of the Customs Act, 1962, and to one year's rigorous imprisonment for the offence under Section 23 of the Foreign Exchange Regulation Act, 1947. It is from the said convictions and sentences that both the accused have filed the present appeal.

(3.) THE conviction of the accused persons is challenged by Mr. Jethmalani on three grounds: (1) that the accused persons not having been taken to a Magistrate till the 23rd of March 1965 in violation of the provisions of Section 104 (2) of the Customs Act, 1962, which enjoin that they should be put up before a Magistrate "without unnecessary delay", the confessions which were obtained from them whilst they were in illegal custody must be regarded as having been obtained under compulsion and not to have been made voluntarily, with the result that they would be hit by the provisions of Section 24 of the Evidence Act; (2) that the confessions of the accused persons are, in any event, not true, there being evidence intrinsic in the confessions themselves to show the same, as well as extrinsic evidence to prove their falsity; and (3) that the extra-judicial confessions which were recorded required corroboration, and on the only point in dispute in the present case, viz. , the question as to whether the possession of gold by accused Nos. 1 and 2 was conscious, there was no corroboration in the other evidence led in the case. I will now proceed to deal with each of these contentions of Mr. Jethmalani.