STATE OF MAHARASIITRA v. NATWARLAL DAMODARDAS SONI (2)

Citation: [1980] 2 S.C.R. 340

Court: Supreme Court of India

Bench: R.S. SARKARIA, O. CHINNAPPA REDDY

Case summary

He, however, did not dispute the fact that the gold in ·question was found from his premises. , del;ivering the opinion of the Bench, held that even if the search is illegal beibg in contravention with the requirements of Section 165, Criminal Procedure Code 1898 ' , that...

Judgment text

STATE OF MAHARASIITRA v. \\ NATWARLAL DAMODARDAS SONI • December 4, 1979 [R. S. SARKARIA AND 0. CHINNAPPA REDDY, JJ. J • Code of Crhninal Procedure-Anti Corruption Bureau seized sn1uggled gold fro1n_ the house of the ac. cuset,l-Poli'ce-lj had no iuri. ~diction to take~.. cognizance. , ~-; "W- Customs Act, 1962-S. 135-Scope of-Burden of proof that gold sriced is not smuggled gold-On whom rests. Words and phrases--"Acquired possession'' or "Keepi11g"-Mea. ning cf. The Anti--Corruption Bureau of the Police raided the house of the 1espon. dent and recovered gold biscuits with foreign markings stitched in a · jacket lying int a steel trunk underneath some cloth~. At the time of the ra{d, th~ respondent was not in the house but his wife and mother were present. At about the same time the Customs Authorities also raided his house and took proceedings under the Customs Act, 1962 in respect of the smuggled gold found in the house. The respondent, who remained absconding, surrendere. C.

to the police a week thereafter. ~ At the trial the· respondent contended ~at the gold was brought jn~G his house by someone and left there in his absence and that, therefore, he had no connection with the gold. The trial court rejected the respondent's defence and convicted him of the offences. ' I On appeal, the High Court held that the prosecution had failed to prove~ ~ that the gold found in the house of the respondent was gold on which duty .... _ had been evaded or the import of which was prohibited and that for that reason ' the further question whether the gold was smuggled gold did not ari5e. Tt also interpreted rule 126H(2)(d) of the Defence of India Rules 1962 read with rule 126 P(2)(iv) as confined to acquiring ownership and not to the more \ acquiring of possession and held that there was no acceptance of gold by the accused within the meaning of the Rules because not being present in the ! iouSe, • he bad no choice of accepting or refusing the gold.

Jn appeal to this rourt it \Vas contended on behalf of the respondent that ~ (i) the. search of his honse and the seizure of gold by the police was illegal; • (ii) that section 123 of the Customs Act was . not applicable because the seizure ' was made not by the Customs Authorities but by the police under the Code. of~\ Crintlnal Procedure and therefore the burden of proving the offence lay on thC police which it did not discharge. Rejecting the respondent's contention and allowing the appeals, HELD : 1. The police had powen; under the Code of Criminal Procedure to search and seize the gold if they had reason to believe that a cognizable offence had been committed. Assuming that the search was illegal it Y. :ould ' MAHARASHRTA V· NATWAR LAL DAMODAR DAS (Sarkaria, J. ) 341 npt affect either the validity of the seizure and further investigation by the CUStoms Authorities or the validity of the trial which followed on the complaint cf the Assistant Collector of Customs.

[344 HJ Radhakislzan v. State of U. P. [1963] Supp. 1 S. C. R. 408; Shyam Lal Sharma & Anr. v. The State of Madhya Pradesh, A. I. R. 1972 S. C. 886; State ) 'I. of.. Kerala etc. v. Alasserry Mohammed etc. A. I. R. 1978 S. C. 933; W. T. Stone, Warden, 74-1055 v. Lloyd Charles Powell and Charles L. Wolff Jr. Warden, 74-1222 v. David L. Rice (1976) USSC Bulletin, Vol. 2, B 4840, referred to. • 2. :a) The High Court was in error in acquitting the appellant of the charges under clauses (a) and (b) of section 135(1) of the Customs Act, 1962, [350 G] ~. ' (b) Even if the prosecution could not invoke the provisions of section 123 of. the Customs Act there was sufficient circumstantial evidence to establish that the gold was smuggled gold.

[346 HJ (c) Jn order to substantiate a charge under clause (b) of section 135(1), the prosecution has to prove (i) that the accused had acquired possession or Was in any way concerned in k~eping or concealing the gold bars (ii) that he knew or had reason to• believe that these gold bars were sfiluggled goods and thus liable to confiscation under section 111 of the Customs Act. [347 GJ (d) Even in cases where section 123(1) of the Customs Act is not attracted the prosecution can discharge its burden by establishing circun~starices ftom which a prudent man acting prudently may infer that in all probability the goods in question were smuggled goods and the accused had the requisite guilty knowled. r? c in respect thereof. [347 Hl lssardas Dau/at Ram and Ors. v. The Union of India [1962) 1 Supp. S. C. R. 358; l. abhchand Dhanpat Singh Jain v. State of Maharashtra, A. I. R. 1975 S. C. 182; Balunial Janznadas Batra v. State of Maharashtra, A. I. R. 1975 S. C. 2083. referred to.

~ Jn the instant case wlule acquitting the. accused the High Court overlooked • o:;everal tell-tale circumstances appearing in evidence which establL'>h that the gold was smuggled gold namely (a) the gold biscuits bore foreign markings which proclaimed their foreign origin; (b) they were of 24 carat purity which was not available in India at the material time; (c) the gold biscuits were .. ~ found concealed stitched in the folds of a jacket specially prepared for this purpo se, may be extracted as under : MAHARASHTRA v. NATWAR LAL DAMODAR DAS (Sarkaria, J. ) 351 "126H(2). Save as otherwise provided in this Part,- (d) no person other than a dealer licensed under this , Part shall buy or qtherwise acquire or agree to buy or otherwise acquire, gold, not being ornament, except, (i) by succession, intestate or testamentary or (ii) in accordance with a permit granted by the Board in this behalf. " "126P(2).

Whoever,~ (ii) has in his possession or under his control any quantity · of gold in contravention of any provision of this Part; (iv) buys, or otherwise acquires, or accepts gold in contravention of any provision of this ·Part, shall be punishable with imprisonment for a term of not. less than six months and not more than two years and also with fine. " The High Court has held that these Rules do not apply because the accused respondent had not acquired possession o~ these gold biscuits by purchase or otherwise within the meaning of these Rules. Such a narrow construction of this expression, in our opinion, will emasculate these provisions and render them ineffective as a weapon for combating gold smuggling. As was pointed out by this Court in Balakrisk~a 1 Chhaganlal v. State of West Benga/( ); Rule !

26P(2) (ii) penalises a person who has in his possession or under his, control any quantity of gold in contravention of any provision of this: Part, and the Court cannot cut back on the width of the language used, bearing in mind the purpose of plenary control the State wanted to impose on gold, and exempt smuggled gold from the expression ''any quantity of gold" in, that sub-. rule. These provisions have, therefore, to be specially construed in a manner which will suppress the mischief and advance the • object which the Legislature had in view. The High Court was, in error in adopting too narrow a construction which tends to stultify the law. The second charge thus had been fully established against the . ) respondent. · Mr.

Shiv Pujan Singh, for the respondent, submits that this prosecution has been brooding over the head of the respondent for morei than • eleven years and that the arch criminal who was the owner of the gold biscuits in question has escaped making the respondent a scapegoat. It (! ) A. I. R. ! 975S. C. 2083. is stressed that the accused is a first offender and he should be released on probation. Undoubtedly, this long delay is a factor which should along v. ith ' the other circumstances, be taken into account in mitigation of the sentence. Even so, in a case of ·gold smuggling we are loath to accord to the accused, found guilty, the beuefit of the Probation of Offenders Act. Smuggling of gold not only affects public ;revenues and public economy but often escaped detection. For the foregoing reasons, we allow this appeal, set aside the acqmttal of the accused, Natwarlal Damodarda$ Soni, and convict him under Section l:i5(1)(a)&(b).

However, taking into account all the circumstances of the case, particularly the fact that these criminal proceedings, like sword of damocles, have been hanging over the head of the respondent for more than eleven years, we sentence ·him cumulatively on these two counts, to six months imprisonment and a fine of Rs, 2,000, and in default, to suffer four months further lmpriSo'nment. We further convict him under Rule 126P(2) of the Defence of India Rules, 1962 and sentence him to six inonths rigorous impri· sonment. The sentence on all the counts shall ru'n concurrently. The bail of the accusedcrespondent is cancelled. He must surrender to serve out the sentence inflicted on him. P. B. R. Appeal allowed. , • ~- ~ ~ . (_ ' MGIPJ. '1-868SCI/79-2,S00-30·7-80.