ASSISTANT COLLECTOR OF CUSTOMS Vs. RASIKLAL CHIMANLAL SHAH

JUDGEMENT

(1.) In this appeal by an Assistant Collector of Customs by special leave against an appellate order of acquittal of the respondent, who was convicted by a learned Magistrate under Section 135(1)(b)(ii) of the Customs Act, the relevant facts as alleged by the prosecution are as follows.

(2.) On the 18th February, 1964 at 4.55 p.m., the respondent arrived at Dum Dum Airport by air from Imphal and he was led to the customs enclosure by a Preventive Officer, Calcutta Customs, L.M. Mazumdar (P.W. 1) where he was asked to make a baggage declaration in the prescribed form. He did so and on search of his person by the said preventive officer in presence of two witnesses including P.K. Mukherjee (P.W. 27), 11 pieces of diamonds and some other articles were found which were seized under a search list Ext. 2 as it was reasonably believed to be smuggled goods. His statement Ext. 3 under Section 107 of the Customs Act was recorded and he was taken to the Customs House where M.L. Wadhawan (PW 19) who was then Superintendent, Preventive Services, further examined him and recorded a statement, Ext. 80. He made a further statement Ext. 52 on the following day i.e. to say 19th February, 1964. On the same date L.N. Majumdar (PW 1) received an authorisation, Ext. 4 from M.L. Wadhawan (P.W. 19) to search the residence of the respondent at 285-E, Bowbazar Street and 7 pieces of diamonds were recovered and seized under search list Ext. 8 as these were also reasonably believed to be smuggled goods. On the same date, another preventive officer, Calcutta Customs, Bikash Roy (P.W. 2) on the basis of another authorisation Ext. 20, from the said Superintendent, Preventive Services searched a locker bearing No. 235 of Indian Overseas Bank Ltd. standing in the name of the respondent and his son Surindra Kumar Shah and 5 pieces of diamonds were found and seized under a search list, Ext. 21 as these were also reasonably believed to be smuggled goods. Ultimately a complaint was filed in the court of a competent Magistrate against the respondent and others. The respondent did not deny the recovery of diamonds from his person at the Airport and from his residence and locker but took the plea that these were not smuggled goods but he inherited the same from his father who was a jeweller. His further defence was that he had taken several pieces of diamonds to Imphal for disposal but as the broker could not be found, he came back to Calcutta with the same.

(3.) The learned Magistrate on consideration of evidence adduced before him has found the respondent guilty of the offence punishable under Section 135(1)(b)(ii) of the Customs Act and sentenced him to suffer rigorous imprisonment for one year and also to pay a fine of Rs. 5,000/- in default to suffer .rigorous imprisonment for six months more.