STATE OF MAHARASHTRA Vs. RAJKUMAR KOCHHAR

JUDGEMENT

(1.) This case has had a long and chequered career in the course of which it has paid brief visits to the Supreme Court thrice. The facts of the prosecution case as well as the proceedings are somewhat complicated, but will have to be set out for the purpose of deciding the present application. The accused persons, who are seven in number, are alleged to have committed offences under Section 120B of the Indian Penal Code read with Section 167(81) of the Sea Customs Act, 1878 and Section 5 of the Imports and Exports Control Act, 1947, some time in 1959 -60. The main brain and the principal party to the offences was one Nanda who died on September 15, 1960. There were several business concerns, the composition of which it is necessary to set out for the purpose of the present case. One was the Eastern Trading Corporation, whose proprietor was the said Nanda, and manager accused No. 1 who was a nephew of the said Nanda, but accused No. 2 held a power - -of -attorney to operate the bank account of the said concern with the Hongkong and Shanghai Bank. The second concern to which reference must be made is the one called Shantilal Chhaganlal and Co. in which accused No. 2 was one of the partners. The third concern was Hind Trading Service in which Nanda and accused No. 1 were partners. The fourth concern was named Suresh Trading Co., of which the proprietor was accused No. 8 who resided permanently at Delhi, but accused No. 2 held a general power -of -attorney not only to operate the bank account of the said concern, but to manage its entire affairs. The fifth concern was D. Deepak and Co. of which the proprietor was one Desh Deepak who also resided permanently at Delhi and from whom also accused No, 2 held a comprehensive power -of -attorney to manage the entire affairs of the said concern and to operate its bank account. The sixth concern was Raj Trading Co. of which the proprietor was Nanda and the manager his nephew, accused No. 1. It may be mentioned that the business address of the Eastern Trading Corporation, the Hind Trading Service and the Raj Trading Co. was the same viz. 110 Himalaya House, Paltan Road, Bombay. The business address of the remaining concerns was different from that address, but was also the same inter se, viz., 397 Sk. Memon Street, Bombay, It may further be mentioned that there was a concern named Kokate Bros. who were doing business as clearing agents at 9, Ash Lane in Bombay of which the proprietor was accused No. 4, accused Nos. 5 and 6 being its employees.

(2.) TO Criminal Revision Application No. 565 of 1969 which, it may be stated, was heard along with the present application, was annexed and marked 'A' by the prosecution a detailed schedule of the various shipments cleared by the said firm of Kokate Bros., in respect of which the accused persons are alleged to have committed the offences in question. It is the case of the prosecution that in respect of the first item in that Schedule the procedure which was later on improved upon by the accused persons was as under :

(3.) THE prosecution case is that the accused persons and the said Nanda, therefore, improved upon the procedure followed by them for the purpose of committing the offences in question, and Items Nos. 2 to 10 of the said Schedule relate to the procedure as so improved. The improved procedure which was evolved was that two consignments of goods were sent from abroad by the same ship, one of which was of a lesser quantity, just by a few cases, and the consignment containing the lesser quantity always contained the contraband goods. The other consignment would contain goods which were covered by the import licence. The two consignments would have on them marks which were nearly identical e.g. ZTC and ZIC, or KTL and KIL, the difference being such that with a slight touching up of the middle letter of the mark they would become identical. The shipping documents which would come through a bank to India would, however, be only for the consignment with the larger number of cases which contained goods covered by the licence under which the import was made, but no shipping documents would ever come or be filed with the Customs in respect of the shipment containing the lesser number of cases which comprised the contraband goods. When the Customs appraisers concerned called at random for examination of some of the cases, cases were picked by the servants and agents of the accused persons only out of the larger consignment which contained goods which were in accordance with the licence. After they were so checked, the marks were altered whilst the goods were in the Port Trust shed e.g. ZTC would be altered to ZIC, and ZIC to ZTC. The accused persons would then remove the entire quantity of contraband goods, plus 2 or 8 cases extra out of the genuine goods in order to make up the actual quantity of the shipment relating to the larger consignment. The remaining goods which were in fact goods covered by the licence and were of trifling value were never removed from the Port Trust shed by the accused persons and remained abandoned there. That, in fact, was what aroused the suspicion and curiosity of the customs authorities, and ultimately led to the detection of the offences in question.