NARENDRA PRASAD SRIVASTAVA Vs. ASSISTANT COLLECTOR OF CUSTOMS

JUDGEMENT

(1.) THIS Rule is directed against the judgment and order dated January 1978 passed by the Additional Sessions Judge, 6th Court, Alipore in Criminal Appeal No. 82 of J977 affirming the judgment and order dated August 11, 1977 passed by the learned Chief Judicial Magistrate, Alipore in Case No. C 8 of 1974 convicting the accused petitioner Narendra Prosad Srivastava under Section 135(1)(b)(ii) of the Customs Act, 1962 (hereinafter referred to as the Act) and sentencing him to pay a fine of Rs. 10,000/ - in default, to suffer rigorous imprisonment for 9 months.

(2.) THE ease for the prosecution briefly stated was as follows: On the strength of a search authorisation issued under Section 105 of the Act by the Assistant Collector of Customs, the residence of the accused was searched on February 10, 1974 by some Customs Officers on the reasonable belief that diamonds, rubies and precious stones of foreign origin liable to confiscation, were secreted therein. Prior to the search, the petitioner was asked to voluntarily surrender any contraband goods, if kept by him. He admitted before two independent witnesses and the Customs Officers that he had in his possession some stones and brought out a packet from inside a mattress spread on the bed which was covered by a bed cover. The packet on examination was found to contain two pieces of white stones, believed at the time of seizure to be diamonds and four pieces of big red stones and 468 pieces of small red stones, believed to be rubies. The search of the petitioner's residence thereafter resulted in the recovery of Indian Currency o Rs. 2,200/ - all in Rs. 100/ - notes, kept in the bed room. In absence of any satisfactory explanation from the petitioner regarding the manner of acquisition and possession of the diamonds and the rubies and in view of the fact that the stones were kept in a packet concealed inside the mattress spread on the bed, it was reasonably believed by the Customs Officers that they were illegally imported into India and liable to confiscation under the Act and as such they seized the stones in the presence of the independent witnesses and drew up a search list incorporating the details of the goods seized. The Indian Currency of Rs. 2,200/ - was also seized in the belief that it represented sale proceeds of smuggled goods and therefore liable to confiscation under the provisions of the Act. After completion of search and seizure, a summons under Section 108 of the Act was served upon the petitioner asking him to appear before the Rummaging Inspector (Intelligence) at the Customs House, Calcutta. Pursuant to the summons the petitioner appeared before the Customs Officers and made a voluntary statement regarding acquisition of the above stones. The stones were thereafter sent to the appraiser for getting them valued, A complaint was therefore filed by the Asstt. Collector of Customs against the petitioner and Anr., after obtaining the necessary sanction, under Section 135 of the Act. As the other accused mentioned in the petition of complaint could not be apprehended the case against her was filed and the case proceeded against the petitioner only. After 11 witnesses were examined by the prosecution, a charge under Section 135(1)(b)(ii) was framed against the petitioner by the Chief Judicial Magistrate, Alipore, which reads as follows: -That on 10 -2 -74 at about 8 a. m. at premises No. 265/D, Old Quarters, Calcutta Airport, P.S. Dum Dum you had in your possession and/or were knowingly concerned in carrying, depositing, harbouring, keeping and concealing two pieces of Diamonds, four pieces of big red stones and 468 pieces of small red Stones (rubies) which were seized from inside a packet kept inside the mattress of your bed covered by a bed cover and which were all of foreign origin and the market value of which was about Rs. 49,913.35 which you knew or had reason to believe that they were liable to confiscation and you have thereby committed an offence punishable under Section 135(1)(b)(ii) of the Customs Act, 1962 and within my cognizance.

(3.) IN view of the concurrent findings of fact arrived at by the learned Courts below, it must be held that the accused was found in possession of diamonds and rubies and that the statement made by the accused to the Customs Officers (Ext. 9) was a voluntary statement, and not an involuntary one as contended by the petitioner. Mr. Roy, the learned Advocate appearing for the petitioner fairly conceded that this being a revisional application he is not challenging any of the concurrent findings of fact. He, however, contended that there was no material on record to hold beyond all reasonable doubt that the goods were liable to confiscation under Section 111 of the Act nor were there materials to suggest that the accused knew or had reason to believe that they were liable to confiscation.