Hukma Vs. State of Rajasthan [1963] INSC
181 (29 August 1963)
29/08/1963 GUPTA, K.C. DAS GUPTA, K.C. DAS
HIDAYATULLAH, M.
CITATION: 1965 AIR 476 1964 SCR (4) 708
ACT:
Sea Customs-Seizure of Gold-jurisdiction of
Customs Officer"Adjoining", meaning of-Proof of mens rea--Sea Customs
Act, 1878 (8 of 1878), ss. 167(81), 178-A-Land Customs Act, 1924 (19 of 1924),
cls. (e)(g), of ss. 2, 3-Central Excises Rules, 1944,r. 2(ii)(A)(1).
HEADNOTE:
The appellant was found carrying 286 tolas of
gold in running train between Kerla and Pali stations by the Sub Inspector of
Barmer District. After the gold was seized, criminal proceedings were
instituted against the appellant.
The trial court acquitted the appellant but
the High Court convicted him. The appellant's case in this Court was that the
seizure of the gold from him had not been proved; that the Sub-Inspector was
not a Customs Officer for the place where the seizure was made, and so the 709
seizure was not under the Land Customs Act; and that, in any view of the case,
the prosecution had failed to prove the necessary mens rea in the appellant.
Section 3 of the Land Customs Act authorises
the Central Government to appoint by notification one person to be the
Collector of Land Customs for any area adjoining a foreign frontier and
specified in the notification. The section also authorises the Central
Government to appoint such other persons as it thinks fit to be customs officer
for the same area by a similar notification.The relevant notification issued
was as follows:"1. In exercise of the powers conferred by sub-section (1)
of section 3 of the Land Customs Act 1924 (19 of 1924) read with the
notification of the Government of India in the late Finance Deptt. (Central
Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue
hereby appoints for the areas adjoining the Land Customs Frontier separating
West Pakistan from India, the officers of the Government of Rajasthan specified
in the Schedule hereto annexed, to be land Customs Officers within the
jurisdiction of the Collector of Land Customs Delhi.""The
Schedule." "All officers of the Rajasthan Civil Police and the
Rajasthan Armed Constabulary of and above the rank of Head Constable posted in
the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State
of Rajasthan." Held, that the word "adjoining" in the above
notification means the whole compact block consisting of the State of Punjab,
Jammu and Kashmir and Rajasthan and the Union territories of Himachal Pradesh
and Delhi as one area adjoining the West Pakistan Frontier, and that for this
entire area one person was appointed the Collector of Land Customs. Every
officer, therefore, mentioned in the Schedule would be a Customs Officer not
for any particular District mentioned in the Schedule but for the whole area
which forms the jurisdiction of the Collector of Land Customs Delhi.
Since in the instant case, the Sub-Inspector
was an officer mentioned in the Schedule, he would be an officer for the entire
area which formed the jurisdiction of the Collector of Land Customs, Delhi,
including the place where the seizure was made, and was therefore, competent to
make the seizure.
Held, further, that on the evidence the story
of the recovery of gold from the appellant was true, and that the
circumstances, manner, quantity and the form in which gold was carried, clearly
showed that the appellant was smuggling gold knowingly and with the intention
of evading the prohibition in force with respect to the import of gold into the
country.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 152 of 1962.
710 Appeal by special leave from the judgment
and order dated April 4, 1962 of the Rajasthan High Court in D. D. Criminal
Appeal No. 505 of 1961.
S. K. Kapur, S. Murthy, B. N. Kirpal and K.
K. lain, for the appellant.
H. R. Khanna and B. R. G. K. Achar for P. D.
Menon, for the respondent.
August 29, 1963. The judgment of the Court
was delivered by DAS GUPTA J.-This appeal by special leave is against a
conviction and sentence under s. 167(81) of the Sea Customs Act, 1878. The
appellant was acquitted by the trial court, but on appeal by the State of Rajasthan,
the Rajasthan High Court set aside the order of acquittal and convicted the
appellant under s. 167(81) of the Sea Customs Act, and sentenced him to
rigorous unprisonment for one year. The prosecution case was that on receipt of
some information that gold smuggled from Pakistan was being carried, Lal Singh,
Sub-Inspector of the Check-post of Barmer, followed the appellant into a
railway train at Luni railway station, and in the running train between the
stations of Kerla and Pali, searched appellant's person and found that he was
carrying 286 tolas of gold in a pouli under his trousers.
In the reasonable belief that these were
smuggled goods, Lal Singh seized the gold. The gold that was seized consisted
of six blocks bearing marks "999", N. M. Rothschild & Sons, 22
bars bearing marks '999', 3 small pieces of gold and one pair of murkies. Lal
Singh seized the gold after preparing a seizure list in the presence of witnesses
and later produced the appellant along with the gold before the Superintendent,
Land Customs, Barmer. By an order of the Collector of Customs, New Delhi, dated
July 19,1957, this gold was confiscated and a fine of Rs. 10,000 was imposed on
the appellant. Criminal proceedings were afterwards instituted against the
appellant on the allegation that he had committed an offence under s. 167(81)
of the Sea Customs Act. The prosecution claimed that under s. 178-A of the Sea Customs
Act, the burden of proving that gold was not smuggled lay on the accused. Even
apart from that, the prosecution claimed, it was clear that the gold had been
smuggled. It was alleged that the appellant had carried 711 the gold knowingly
with intent to evade the regulations prohibiting the import of gold Into India.
The main defence of the accused, who pleaded
not guilty, was that no gold was recovered from him. The trial court held that
the prosecution had failed to establish the recovery of gold from the accused.
It further accepted the defence contention that Lai Singh had no authority to
search the appellant and seize the gold at the place where the seizure was
alleged to have been made. According to the learned Magistrate, the seizure, if
any, had not been made under the Land Customs Act and so had not been made
under "the Act" within the meaning of s. 178-A, and there was no
question of the accused having to prove that the gold was not smuggled.
On the evidence adduced by the prosecution,
he was not convinced that it was smuggled gold. Accordingly, he acquitted the
accused. The High Court came to contrary findings on all these points. It held
that the evidence of Lal Singh as regards the seizure should be believed and
that the seizure of the gold from the accused had been proved satisfactorily.
It was also of the opinion that Lal Singh had authority to seize the gold at
the place where the seizure was made, and that s. 178-A of the Sea Customs Act
applied. In the opinion of the High Court, the accused had failed to prove that
the gold was not smuggled and that under the provisions of s. 178-A as also on
the evidence in the case, the gold had been established to be smuggled gold.
All the ingredients of the offence, according
to the High Court, had been proved, and therefore, the accused was convicted
and sentenced as mentioned above.
Three points were raised before us by Mr. S.
K. Kapur in support of the appeal. The first was that the High Court was not
justified in disturbing the trial court's finding that the seizure of the gold
from the accused had not been proved. The second point urged was that the High
Court had fallen into an error in thinking that Lal Singh had authority to
seize the gold at the place where the seizure was made. The third contention
was that in any case even if s. 178-A applied and it was found that the gold
was smuggled, the prosecution had failed to prove the necessary mens rea in the
accused that was necessary to constitute the offence.
712 On the question of seizure of gold from
the accused, the prosecution relied on the testimony of Lal Singh himself.
Lal Singh gave a detailed account as to how
he followed the accused into the train at Luni station and in the running train
conducted the search of his person in the presence of witnesses and recovered
from his possession from a pouli tied beneath his trousers the gold identified
in court as Ex. P.M. 1-32. The seizure Memo. which he claimed to have prepared
at the time of the seizure was marked Exh. P. 3.
This document mentions the names of three
persons as search witnesses. None of these was examined by the prosecution.
The third name mentioned in Exh. P. 3 is Pukh
Raj son of Awasthi Mal, aged about 22 years, resident of Ajit. The defence
examined a Pukh Raj who gave his father's name as Basti Mal and who was
resident of Ajit, and stated that he was the only Pukh Raj in that village. The
High Court seems to have doubted the indentity of Pukh Raj examined as defence
witness as the Pukh Raj mentioned in the seizure list. This finding has been
attacked by Mr. Kapur as unjustified. Whether or not the Pukh Raj examined as
defence witness is the same as the person whose name is mentioned in the
seizure list, is not, however, of much consequence; for the fact remains that
the prosecution has not got the evidence of any of the witnesses in whose
presence the search and seizure are said to have been made, to support Lal Singh's
evidence. The learned Magistrate gave this failure of the prosecution to
examine the witnesses as the main reason for his inability to accept Lal
Singh's testimony. The High Court has accepted Lal Singh's testimony, but
unfortunately the judgment does not indicate that the learned judges of the
High Court took into consideration this fact that the search witnesses had not
been examined. We have, therefore, thought it necessary to examine the evidence
for ourselves to see whether the seizure as alleged by the prosecution has been
proved. Lal Singh's evidence on the point has already been mentioned.
It has to be noticed that the defence witness
No. 2, Poonam Chand, has also spoken about the search. His evidence is that
police conducted search in the compartment when the train was enroute from Luni
to Pali, and that "the police took search of the 713 accused Hukma present
before the court and of two or three more persons named Kesrimal and
Tarachand". The witness added no gold was recovered from: the possession
of the accused Hukma Ram, but admitted that in the same compartment a purse was
recovered. It has to be noticed that when Lal Singh was examined, no suggestion
was made to him in cross examination that any other person had been searched in
the compartment. It is not unreasonable to think, therefore, that when Poonam
Chand is speaking of search in the compartment of Hukma and the find of a purse
there though stopping short of saying what was recovered from it, his evidence
unwittingly supports the story given by Lal Singh about the search and the
recovery of the gold. It does not stand to reason that if two other persons bad
been searched and gold had been found within one of them, this appellant, a
pointsman in the Railway, should be falsely implicated and the person from whom
the recovery of gold was made, should have been allowed; to, escape. The
accused suggested in his statement that Lal Singh was inimically disposed
towards him because on one occasion Lai Singh had asked him to serve water and
he had not done it at once. There was no suggestion about this incident to Lai
Singh in his crossexamination, and we are convinced that this is: entirely
false. On a consideration of Lal Singh's evidence along with the evidence of
appellant's own witness, Poonam Chand we are convinced that the story of
recovery of gold from the accused is true. The reason why the three witnesses
mentioned in the seizure list have not come forward to support the prosecution
case is, in, our poinion, not that the story of search and seizure as given by
Lal Singh is not true, but that these witnesses have been gained over.
This brings us to Mr. Kapur's main
contention, namely, that Lal Singh was not a Customs Officer for the place
where the seizure was made, and so the seizure was not under the Land Customs
Act, taken with the provisions of the Sea Customs Act. The answer to this
contention depends on the construction of the notification appointing Customs
Officers for the areas adjoning the frontier between West Pakistan and India.
The notification as it stands after an amendment in 1956, runs 46-2 S. C.
India/64 714 as follows:"1. In exercise of the powers conferred by
Sub-section (1) of section 3 of the Land Customs Act 1924 (19 of 1924) read with
the notification of the Government of India in the late Finance Deptt. (Central
Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue
hereby appoints for the areas adjoining the Land Customs Frontiers separating
West Pakistan from India, the officers of the Government of Rajasthan specified
in the schedule hereto annexed, to be Land Customs Officers within the
jurisdiction of the Collector of Land Customs Delhi." "The
Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan
Armed Constabulary of and above the rank of Head Constable posted in the
Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of
Rajasthan." Asking us to give a restricted meaning to the word
"adjoining" in the notification, Mr. Kapur has suggested that this
notification gave authority to the Customs Officers only for the areas within a
few miles from the border, He contended next that even if this be not accepted,
the notification on a reasonable interpretation gave authority only to the
officers of the Districts mentioned in the Schedule to function as Customs
Officers in those Districts and nowhere else. The trial court appears to have
accepted this construction, and as admittedly the place of seizure was not in
any of the District mentioned in the Schedule, it held that Lal Singh was not
authorized to search the accused or to seize the gold. The High Court, on the
contrary, has taken the view that each of the officers mentioned in the
Schedule has been appointed a Customs Officer for the entire area which has
"jurisdiction of the Collector of Land Customs, Delhi".
In our opinion, this is the correct and only
possible construction. Section 3 of the Land Customs Act authorizes the Central
Government to appoint by notification in the official gazette one person to be
the Collector of Land Customs for any area adjoining a foreign frontier and
specified in the notification. The section also authorizes 715 the Central
Government to appoint by a similar notification such other persons as it thinks
fit to be Customs Officers for the same area. "Foreign frontier" has
been defined in s. 2, cl. (e) of the Act as the frontier separating any foreign
territory from any part of India. "Land Customs area" has been
defined in cl. (g) of the same section as any area adjoining a foreign frontier
for which a Collector of Land Customs has been appointed under s. 3. From the
definition of foreign frontier in cl. (e), it is clear that an area adjoining
the frontiers separating any foreign territory from any part of India, is
within these words.
What, then is meant by the word 'adjoining'?
According to Mr. Kapur, only a few miles near the frontier can be considered to
be adjoining the frontier. We can see no justification for such a restricted
construction of the word " adjoining". It is true that the village
next to the frontier adjoins the frontier. It is equally correct, however, to
describe the entire District nearest the frontier as adjoining the frontier ;
and we can see nothing wrong in the entire State of Rajasthan adjoining the
West Pakistan Frontier. It appears to us that the Central Government treated
the whole compact block consisting of the State of Punjab, State of Jammu &
Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area ad
joining the West Pakistan frontier, and for this one area it appointed a
Collector of Land Customs. This appears clear from the order appointing the
Collector of Central Excise, Delhi, to be the Collector of Land Customs
(Notification No.
2L Customs, dated 25th January, 1958), taken
with Rule 2(ii) A (i) of the Central Excise Rules, according to which Collector
means "in the State of Punjab, Jammu and Kashmir and Rajasthan and in the
Union Territories of Himachal Pradesh and Delhi, the Collector of Central
Excise, Delhi".
In other words, the jurisdiction of the
Collector of Central Excise, Delhi, is not only over Delhi, but also it extends
to the States of Punjab, Jammu & Kashmir and Rajasthan and the Union
Territories of Himachal Pradesh and Delhi. It was for this entire area that the
collector of Central Excise, Delhi was appointed Collector of Land Customs. The
resultant position, therefore, is that for this entire area of Punjab, Jammu
and Kashmir, Rajasthan, Himachal and Delhi, one person has been ap716 pointed
Collector of Customs. When, therefore, the Central Government proceeded next to
appoint Land Customs Officers and stated that certain officers as specified in
the schedule were appointed Land Customs Officers "for the areas adjoining
the land customs frontiers separating West Pakistan from India", and added
the words that they were to be Land Customs Officers "within the
jurisdiction of the Collector of Land Customs, Delhi," it appears to us to
be quite clear that every officer mentioned in the Schedule would be a Customs
Officer-not for any particular District mentioned in the Schedule but for the
whole areas which forms the Jurisdiction of the Collector of Land Customs,
Delhi and is the area adjoining the West Pakistan frontier for which a
Collector of Land Customs has already been appointed under s. 3. We find no
justification for reading into the Schedule any indication of the area where
the officers will operate. The Schedule purports to mention the different
officers of different districts who arc appointed Land Customs Officers-not for
those particular Districts but for the entire area. Any other reading of the
words used in the main body of the notification would be not only against the
plain meaning of the words used but is likely to defeat the object for which
Land Customs Officers are appointed.
We have, therefore, come to the conclusion
that the construction put by the High Court on the notification is right, and
Lai Singh, being an officer in the District of Barmer which is mentioned in the
Schedule, was an officer for the entire area which formed the jurisdiction of
the Collector of Land Customs, Delhi, including the place where the seizure was
made, and was therefore competent to make the seizure.
There remains for consideration the last
point raised by the learned counsel, namely, that even if Lal Singh had
authority to seize at the place where the seizure was made and s. 178-A of the Sea
Customs Act applied, the prosecution had still to prove by further evidence
that the accused had the mens rea necessary to constitute the offence. Learned
counsel rightly pointed that while s. 178-A has the result of placing the
burden of proof that the gold was not smuggled on the accused, it is of no
assistance to the prosecution to prove that the accused was carrying the gold
717 knowingly to evade the prohibition which was for the time being in force
with respect to the import of gold into India. Once, however, it is found, as
it must be found in this case, in consequence of the provisions of s. 178-A
(the accused has not tried to discharge the burden that lay on him that the
gold was not smuggled) that he was carrying smuggled gold, the circumstances
under which the gold was discovered, the manner in which he was carrying the
gold, the considerable quantity of the gold that was being carried and the form
in which gold was being carried, namely, blocks and bars in which the major
portion of the gold was found, all these circumstances establish beyond a
shadow of doubt that accused was carrying the gold knowingly and with the
intention of evading the prohibition that was in force with respect to the import
of gold into the country. Mr. Kapur tried to argue that when gold is carried by
persons, they often carry it in this manner in a pouli concealed under
trousers. That may well be so. Here, however, there is an additional
circumstance that a points man of the Railway, not expected to have so much
gold in his possession, was carrying the gold which was, as already mentioned
in six bloks and 22 bars apart from some small pieces and one pair of murkees.
The total quantity was as much as 286 tolas and 11 annas, that is, about three
kilograms. When all these circumstances are taken together, it is not possible
to accept learned counsel's suggestion that he might be carrying the gold
innocently having purchased it from somebody. In our opinion, the High Court has
rightly held that all the ingredients of the offence under s. 167(81) of the Sea
Customs Act have been established. It may be mentioned that it has not been
disputed before us that if we believe the story of the recovery of the gold
from the appellant, the circumstances are sufficient to establish that Lal
Singh seized the gold in the reasonable belief that these were smuggled goods.
In the view we have taken in this matter, it
is unnecessary to consider the further argument raised by Mr. H. R. Khanna, who
appeared for the State that even apart from s. 178-A, the guilt of accused
could be held to be proved by the confession made by him before the Deputy
Superintendent, Land Customs, corroborated as it 718 is by the recovery of the
gold from him.
All the points raised in the appeal on behalf
of the appellant fail, and the appeal is, accordingly, dismissed.
Appeal dismissed.
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