STATE Vs. PADMARAM

JUDGEMENT

(1.) THIS is an appeal by the State against a judgment and order of the First Class Railway Magistrate, Jodhpur, dated the 2nd January, i960, acquitting the accused respondent Padmaram of as offence Under Section 167 (81) of the Sea Customs Act 1878, (Act VIII of 1878) read with Section 23 of the Foreign Exchange Regulation Act, 1947 (Act VII of 1947 ).

(2.) THE prosecution case was briefly this. It was alleged that on the 18th October, 1957, information having been received that smuggled gold was being carried by certain passengers, (whose names were not mentioned,) travelling by the railway train bound from Barmer for Jodhpur, P. W. 5 Kuberdany a Deputy Superintendent of Policy who was deputed on special duty at Jodhpur in connection- with antismuggling operations and P. W. 2 S. S. Chawla, a Deputy Superintendent of Customs at Barmer who was also at Jodhpur on that date, in the same connection, reached the Jodhpur Railway Station at about 6-30 A. M. which was the time when the said train was to arrive at Jodhpur. They were accompanied by P. W. 1 Mohansingh, an inspector of the Central Excise Department and P. W. 3 Lalsingh a Sub-Inspector of Police who also formed part of the-anti-smuggling squad. P. W. Mohansingh was-standing on platform No. 3 of the Jodhpur Railway Station when he saw that the accused Padmaram got down from the train towards the second line and was going towards the station platform. Mohansingh stopped the accused as he was carry-'ing a bag in his hand asked him what he. had1 therein. The accused told Mohansingh that he did not -know what was in the bag. We have it from Mohansingh further that the accused did tell him at the time that the bag had been given over to him by some merchant (the exact word used in this connection is 'bania') who was travelling with him in the same compartment but lie did not know what it contained. This naturally excited his suspicion and he brought the accused on the-platform with the bag. The accused was then searched in the presence of Kuberdan, S. S. Chawla and two Motbirs P. W. 4 Kishanchand, and P. W. 5 Sheodutt, and it was found that tied in two pieces of cloth (and these pieces were in turn wrapped in a towel), there were two lots containing ten flat pieces of gold biscuit shaped, and each of these pieces, weighing ten tolas, had a seal on it bearing the name of 'n. M. Rothchild and Sons' and further bearing the figures 999 therein, the latter mark presumably ipdicating the quality of the gold. A recovery list (Ex. P-i) was immediately made and signed by P. Ws. Kuberdan, S. S. Chawla and Lalsingh. and three Motbirs Arjunsingh, an Assistant Station Master at Jodhpur, and Sheodutt, a Travelling Ticket Examiner, and by Kishenchand, a hotel-keeper, and the last two were produced by the prosecution at the trial. A complaint was consequently filed by the Assistant Collector of Central Excise and Customs, Ajmer, in the court of the Railway Magistrate, Jodhpur. On the 27th June, 1958, on the aforesaid allegations, and further stating that the marks inscribed on the pieces of gold recovered from the; accused indicated that the same were of foreign origin and that the officers concerned had seized the same in a reasonable belief that they had been smuggled from foreign territory in contravention of the prohibition imposed on the import of gold by the Government of India vide notifications Nos, 12 (II) FI/48 dated 25th August, 1948, and 12 (II) FI/51 dated the 27th February, 1931, issued under Section 8 (1) of the Foreign Exchange Regulation, Act, 1947, and, therefore, it was alleged that the accused committed an offence Under Section 167 (81) of the Sea Customs Act 1878 read with Section 23a of the Foreign Exchange Regulations Act, 1947. It was also stated in the complaint that the Assistant Collector of Central Excise at Ajmer had authority to lodge the complaint according to a certain notification referred to therein; but we need not mention any details in that connection as the authority of the officer concerned to file the complaint is not the subject-matter of any controversy whatever.

(3.) THE accused respondent Padmaram pleaded not guilty to the charge which was levelled against him. His case, put briefly, was that he was not the owner of the gold in question nor was the gold ever recovered from his possession. According to him, two merchants were travelling with him in the same compartment and the bag from which the gold was recovered belonged to them. What bad really happened, according to the version of the accused was that the Thanedar had caught hold of all these three persons in the railway compartment itself and when the Mahajans saw the Thanedar coming, they kept the bag on the seat on the other side whereof the accused was -sitting. The Thanedar asked each one of them -to whom the bag belonged and to this' question the Mahajans as well as the accused replied in the negative. Thereafter, the said officer brought all the three of them to the station platform and the rage was opened there in the presence of the Motibirs and gold was found therein. Thereafter the (police officer somehow left the Mahajans scot free and implicated him. The accused produced two witnesses in his defence and we shall have occasion to refer to their evidence at the proper place.