State of Maharashtra Vs. Natwarlal
Damodardas Soni [1979] INSC 254 (4 December 1979)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
REDDY, O. CHINNAPPA (J)
CITATION: 1980 AIR 593 1980 SCR (2) 340
CITATOR INFO :
R 1985 SC 989 (15)
ACT:
Code of Civil Procedure-Anti Corruption
Bureau seized smuggled gold from the house of the accused-police-If had no
jurisdiction to take cognizance.
Customs Act, 1962-5. 135-Scope of-Burden of
proof that gold seized is no smuggled gold-on whom rests.
Words and phrases-"Acquired
possession" or "Keeping"- Meaning of.
HEADNOTE:
The Anti-Corruption Bureau of the Police
raided the house of the respondent and recovered gold biscuits with foreign
markings stitched in a jacket lying in a steel trunk underneath some clothes.
At the time of the raid, the 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.
surrendered to the police a week thereafter.
At the trial the respondent contended that
the gold was brought into his house by someone and left there ill his absence
and that, therefore, he rad no connection with the gold. The trial court
rejected the respondent's defence and convicted him of the offences.
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 arise. It 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 house, he had no choice of accepting or refusing the gold.
In appeal to this court it was contended on
behalf of the respondent that (i) the search of his house 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 Criminal Procedure and therefore the burden of
proving the offence lay on the Police which it did not discharge.
Rejecting the respondent's contention and
allowing the appeals,
HELD: 1. The police had powers 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 would 341 not 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 of the Assistant Collector of Customs. [344 H]
Radhakishan 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 of Kerala etc. v. Alassery 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 H]
(c) In 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 keeping or concealing the gold bars (ii) that he knew or
had reason to believe that these gold bars were smuggled goods and thus liable
to confiscation under section 111 of the Customs Act. [347 G] (d) Even in cases
where section 123(1) of the Customs Act is not attracted the prosecution can
discharge its burden by establishing circumstances from 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 knowledge in respect
thereof. [347 H] Issardas Daulat Ram and Ors. v. The Union of India [1962] 1
Supp. S.C.R. 358; Labhchand Dhanpat Singh Jain v. State of Maharashtra, A.I.R.
1975 S.C. 182; Balumal Jamnadas Batra v. State of Maharashtra, A.I.R. 1975 S.C.
2083, referred to.
In the instant case while acquitting the
accused the High Court overlooked several tell-tale circumstances appearing in
evidence which establish 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 purpose; (d) the gold biscuits were of huge value
and (e) after the seizure of the gold the accused absconded and continued to be
a fugitive from justice till a week thereafter. All these circumstances show
that the gold had been smuggled into the country from a foreign country in
contravention of the Foreign Exchange Regulations Act, 1947.
[347 C-E] (e) The fact whether the gold had
been imported with or without the necessary permission of the Reserve Bank of
India was within the knowledge of the respondent. It was for him to rebut the
inference which arose under section 111 of the Evidence Act. Once it is
established that the respondent was in conscious possession or
"keeping" of the gold it follows that he had the mens rea requisite
under clauses (a) and (b) of section 135(1) of the Customs Act. [350 A-B] 342
3. (a) The expression "acquired
possession" or "keeping" in section 135(1) (b) is not to be
restricted to "possession" or keeping acquired as an owner or
purchaser of the goods. Such a narrow construction would defeat the object of
the provisions and undermine their efficacy as instruments for suppression of
the mischief which the legislature had in view. [350 D] (b) The expression
"acquired possession" is of very wide amplitude and includes
acquisition or possession by a person in a capacity other than as owner or
purchaser. The clause which is widely worded brings within its fold even
temporary control or custody of a carrier, remover, depositor, harbourer,
keeper or dealer of any goods which he knows or has reason to believe to be
smuggled goods or prohibited goods (liable to confiscation under section 111).
The expression 'keeping" and
"concealing" in the second phrase of clause (b) also cover the
present case.
4. The view of the High Court that rule 126H
read with 126P of the Defence of India Rules has no application to this case on
the ground that the respondent did not acquire possession of the gold biscuits
for purchase or otherwise within the meaning of the Rules would emasculate the
provisions and render them ineffective. These provisions have to be construed
in a manner which will suppress the mischief and advance the object which the
legislature had in view. [350 E] Balkrishan Chhaganlal v. State of West Bengal
AIR, 1975 S.C. 2083, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal
Appeal No.
231 of 1973.
Appeal by Special Leave from the Judgment and
order dated 13-10-1972 of the Bombay High Court in Crl. A. No. 73/71.
O. P. Rana and M. N. Shroff for the
Appellant.
Shiv Pujan Singh (Amicus Curiae) for the
Respondent.
The Judgment of the Court was delivered by
SARKARIA, J.-This appeal by special leave is directed against a judgment dated
October 13, 1972, of the High Court of Bombay.
Natwarlal, respondent herein, was prosecuted
in the Court of the . Presidency Magistrate 2nd Court, Mazgaon, Bombay, for
offences (1) under Section 135(a) read with Section 135(i) of the Customs Act,
1962, (2) under Section 135(b) read with Section 135(i) of the same Act, and
(3) under Rule 126-H(2) (d) read with Rule 126 P(2) (iv) of the Defence of
India Rules, 1962. The Magistrate convicted him in respect of these offences
and sentenced him to suffer six months' rigorous imprisonment and to pay a fine
of Rs.
1,000/- on each count. The material facts are
as follows .
On March 6, 1968, in consequence of certain
information received by the staff of the Anti-Corruption Bureau, Bombay,
residential pre- 343 mises of the accused-respondent at old Hanuman Lane,
Bombay was searched at about 1 p.m. The respondent himself was not present at
his house, but his wife and mother were present in the premises at the time of
the search. As a result of the search, the Anti-Corruption Bureau recovered 100
gold bars, each weighing 10 tolas. These gold bars had foreign markings and
were in the shape of gold biscuits of 24 carats purity and were found stitched
in a cotton jacket, which was Lying in a steel trunk underneath some clothes.
The prevailing market value of the recovered gold was Rs.
1,85,000. As the search was being completed
and the Panchanama prepared, the Customs Authorities, also raided the premises.
The Anti-Corruption Bureau, however, first completed its Panchanama and later
on a separate Panchanama was prepared, under which the gold so seized by the
Anti Corruption Bureau was taken possession of by the Customs Authorities. The
case of the prosecution further was that the respondent remained absconding
after this recovery till March 14, 1968, when he surrendered.
The Customs Authorities, also, took
proceedings under the Customs Act, 1962, and during the course of those
proceedings, recorded the statements of the accused respondent, his wife, and
mother.
At the trial, the accused respondent denied
the charge and claimed lo be tried. He, however, did not dispute the fact that
the gold in question was found from his premises.
Substantially, his defence was that this gold
was brought into his premises by one Jayantilal Salla (P.W. 4) and left there
in his absence. The respondent further pleaded that he had no connection with
this gold. He asserted that if at all anybody was responsible, it was
Jayantilal Salla, who has been examined as prosecution witness in this case.
The learned Presidency Magistrate by his
judgment dated October 16, 1960, found that the charges had been established
against the respondent. He rejected the defence story and convicted the respondent
as aforesaid.
Aggrieved, the respondent preferred an appeal
against his conviction to the High Court. The appeal was heard by a learned
Single Judge (Vimadlal, J.), who by his judgment, dated October 13, 1962,
allowed the appeal, set aside the conviction of the respondent and acquitted
him. Hence this appeal by the State of Maharashtra against that acquittal.
The High Court has held "that the
prosecution has failed to prove that the gold found in the house of the accused
was gold on which duty 344 had been evaded, or the import of which was
prohibited and, in that view of the matter, the first and second charges!
framed against the accused must fail, and the further question as to whether
the accused knew that the gold in question was smuggled gold does not really
arise". The High Court refused to consider the decision of this Court in
S. Banerjee v. S. Agarwal, which was relied upon by the counsel for the State,
with the observation :
"Suffice it to say that the observations
in the majority judgment of Wanchoo. J. in the said case would apply only if it
was in the first instance proved by the prosecution that the gold in question
was smuggled gold which the prosecution has failed to prove in the present
case." As regards the third charge under Rule 125-11(2) (d) read with Rule
126-P(2) (iv) of the Defence of India Rules, 1962, the High Court held that the
prosecution had failed to establish "that the accused had bought or
otherwise acquired the gold without being a licensed dealer." In its opinion,
the aforesaid Rules must be interpreted as being confined to acquiring of
ownership and not to the mere acquiring of possession. It further held that
there was no "acceptance" of gold by the accused within the meaning
of Rule 126-P(2) of the Defence of India Rules, 1962, because the accused being
away from home, had no choice of accepting or refusing the same.
As before the trial court, here also, learned
counsel appearing for the respondent, contends that the search and seizure by
the police of the gold from the house of the respondent, was illegal, that the
information on the basis of which the police conducted the search was not
produced;
and that this illegality had vitiated the
trial that followed. In the alternative, counsel submits that Section 123 of
the Customs Act, which places the burden on the accused-person to show that
seized goods are not smuggled gold, was not applicable in the present case,
because the seizure of the gold was not made by, the Customs Authorities under
the Customs Act, 1962, but by the Police under the Code of Criminal Procedure.
This being the case-proceeds the argument the burden lay heavily on the
prosecution to prove every ingredient of the offences with which the accused
stood charged. It is maintained that the prosecution had miserably failed to
produce any evidence to show that the gold in question was smuggled gold.
Taking the first contention first, it may be
observed that the police had powers under the Code of Criminal Procedure to
search and seize this gold if they had reason to believe that a cognizable
offence 345 had been committed in respect thereof. Assuming arguendo, that the
search was illegal, then also, it will not affect the validity of the seizure
and further investigation by the Customs Authorities or the validity of the
trial which followed on the complaint of the Assistant Collector of Customs In
Radhakrishan v. State of U.P. the appellant was a postman. He and his father
were living in the same house.
Certain undelivered postal articles were
recovered from an almirah in the house, the key of which was produced by the
father. The appellant, Radhakishan was tried and convicted of an offence under
s. 52 of the Post offices Act, for secreting postal articles. One of the
contentions raised on behalf of the appellant was that the search and seizure
was illegal inasmuch, as it was in contravention of the provisions of Sections
103 and 105 of the Code of Criminal Procedure. Mudholkar, J. speaking for the
Court, repelled this contention, thus:
"So far as the alleged illegality of the
search is concerned, it is sufficient to say that even assuming that the search
was illegal the seizure of the articles is not vitiated. It may be that where
the provisions of ss. 103 and 165, Code of Criminal Procedure, are contravened
the search could be resisted by the person whose premises are sought to be
searched. It may also be that because of the illegality of the search the Court
may be inclined to examine carefully the evidence regarding the seizure. But
beyond these two consequences no further consequence ensues." These
observations apply aptly to the instant case.
Again, in Shyam Lal Sharma & Anr. v. The
State of Madhya Pradesh, Jaganmohan Reddy, J., delivering the opinion of the
Bench, held that even if the search is illegal being in contravention with the
requirements of Section 165, Criminal Procedure Code, 1898, that provision ceases
to have any application to the subsequent steps in the investigation.
In State of Kerala etc. v. Alasserry Mohammed
etc., question arose, whether the failure on the part of the Food Inspector to
comply strictly with the statutory provisions, would vitiate the trial and
conviction of the respondent ? This Court answered this question in 346 the
negative, and referred with approval to the decision, dated July 6, 1976, in
W.T. Stone, Warden, 74-1055 v. Lloyd Charles Powell and Charles L. Wolff Jr. Warden,
74-1222 v. David L. Rice, wherein the Supreme Court of the United States of
America made a clear departure from its previous decision in the application of
the exclusionary rule of evidence. The prosecution in those cases relied upon
the evidence of search and seizure, which were said to be unconstitutional and
unlawful. Mr. Justice Powell, who delivered the leading majority judgment, made
these pertinent observations:
"Upon examination, we conclude, in light
of tile nature and purpose of the Fourth Amendment exclusionary rule, that this
view is unjustified. We hold, therefore, that where the State has provided an
opportunity for full and fair litigation of a Fourth Amendment claim, the
Constitution does not require that a State prisoner be granted federal habeas
corpus relief on the ground that evidence obtained in an unconstitutional
search or seizure was introduced at his trial." In his concurring opinion,
Chief Justice Burger highlighted the injustice that often resulted from
application of the exclusionary rule. Said the learned Chief Justice:
"To vindicate the continued existence of
this judge-made rule, it is incumbent upon those who seek its retention-and
surely its extension-to demonstrate that it serves its declared deterrent
purpose and to show that the results outweigh the rule's heavy costs to
rational enforcement of the Criminal Law See. e.g. Killough v. United States,
[315 F 2d 241 (1962)]. The burden rightly rests upon those who ask society to
ignore trustworthy evidence of guilt, at the expense of setting obviously
guilty criminals free to ply their trade." What has been said above is
more than enough to show that the first contention raised on behalf of, the
respondent is devoid of merit.
As regards the second contention canvassed by
Shri Shiv Pujan Singh, we would say that even if the prosecution cannot invoke
the provisions of Section 123. Customs Act, to lighten the burden cast on it,
there is sufficient circumstantial evidence to establish that the gold in
question was smuggled gold. Before dealing with that evidence, it will be
useful to notice the relevant provisions relating to the charges against the
respondent.
347 First, we take up the charges under
Section 135 of the Customs Act, A 1962. The material part of that Section reads
as under:
"135.(t) Without prejudice to any action
that may be taken under this Act, if any person- (a) is in relation to any
goods in any way knowingly concerned in any fraudulent evasion or attempt at
evasion of any duty chargeable thereon or of any prohibition for the time being
imposed under this Act or any other law for the time being in force with
respect to such goods, or (b) acquires possession of or is in any way concerned
in carrying. removing, depositing, harbouring, keeping, concealing, selling or
purchasing or in any other manner dealing with any goods which he knows or has
reason to believe are liable to confiscation under Section 111, he shall be
punishable,- (i) in the case of an offence relating to any of the goods to
which Section 123 applies and the market price whereof exceeds one lakh of
rupees, with imprisonment for a term which may extend to seven years and with
fine .
Provided that in the absence of special and
adequate reasons to the contrary to be recorded in the judgment of the court,
such imprisonment shall not be less than one year;
(ii) in any other case, with imprisonment for
a term which may extend to three years, or with fine, or with both".
Section 111 enumerates the categories of
goods which are imported into India and are liable to confiscation. Broadly
speaking, these categories relate to goods which are smuggled into India.
The requisite guilty knowledge or mens rea
under clauses (a) and (b) of Section 135(1) can be established by
circumstantial evidence, also. In order to substantiate the charge under clause
(b) against the respondent, the prosecution had to prove (i) that he had acquired
possession of or was in any way concerned in keeping or concealing the gold
bars; (ii) that he knew or had reason to believe that these gold bars were
smuggled goods, and thus liable to confiscation under Section 1 t l of the Customs
Act.
It is trite law that even in cases where
Section 123(1) of the Customs Act is not attracted, the prosecution can
discharge its burden by establishing circumstances from which a prudent man,
acting pru- 348 dently, may infer that in all probability the goods in question
were smuggled goods, and the accused had the requisite guilty knowledge in
respect thereof. The leading case is: Issardas Daulat Ram and ors. v. The Union
of India & ors. In that case, in reaching the conclusion that the gold had
been smuggled, the Collector of Customs considered the credibility of the story
put forward by the appellant about the purchase of the gold and also the
conduct of the appellant in trying to get the gold melted so as to reduce its
fineness by mixing silver with it, in an attempt to approximate the resultant
product to licit gold found in the market. The ratio of this decision was
followed by this Court in Labhchand Dhanpat Singh Jain v. State of Maharashtra:
The appellant-accused therein was trying to enter the Railway compartment at
Bombay Station. Seeing his nervousness, the Rail way police questioned him and
searched his person and recovered nine bars of gold with foreign markings. The
accused put forward an incredible story with regard to the possession of the
gold. This Court held, that in the circumstances of the case, an inference
could very well be drawn that the gold must have been imported after the law
passed in 1948, restricting its entry; that the burden of proving an innocent
receipt of gold lay upon the appellant under Section- 106, Evidence Act and
that the totality of facts proved is enough to raise a presumption under Section
114, Evidence Act that the gold had been illegally imported into the country,
so as to be covered by Section 111(d) of the Customs Act.
It is to be noted that in Labhchand's case
(ibid).
Section 123 of the Customs Act was not
applicable, as the seizure of the gold was by the police and not by the Customs
officer. The Courts in that case did not use this presumption under Section 123
of the Evidence Act against the appellant. They relied upon the circumstantial
evidence to raise the necessary inference with regard to the character of the
gold seized and the possession of the requisite mens rea by the accused. The
ratio of Labhchand's case (ibid) applies a fortiori to the facts of the case
before us.
In Balumal Jamnadas Batra v. State of
Maharasthra a Bench of this Court to which one of us (Sarkaria J.) was a party,
eleven boxes were seized by the Police from Room No.
10 at Sheriff Deoji Street, Bombay. On
opening the boxes, goods bearing foreign markings such as "Made in
Germany", were found. A rent receipt in the name of the accused in respect
of Room No. 10, in the occupation of the accused 349 was also recovered. It was
held by this Court, that even if the goods A bearing foreign markings, were not
seized under the Customs
Act, and as such Section 123(1) of the Act was not attracted, the
aforementioned circumstances, under Section 114 read with Section 106 of the
Evidence Act were sufficient to presume that the accused knew that the goods
had been smuggled or imported in contravention of law.
In the instant case while holding that the
respondent was in conscious possession of the gold bars in question, the High
Court has acquitted him only on the ground that the prosecution had failed to
prove that the gold in question had been imported after 1947 without the
necessary permission of the Reserve Bank, or without payment of duty and that
the further question as to whether the accused knew that it was smuggled gold
"does not really arise". With this reasoning the High Court acquitted
the respondent on the first two charges under Section 135 of the Customs Act.
The High Court overlooked several tell-tale circumstances appearing in evidence
which unerringly pointed to the conclusion that the gold if question was
smuggled gold.
These circumstances are. (a) the gold
biscuits in question bore foreign markings which proclaimed their foreign
origin.
(b) This gold was of 24 carat purity which
was not available in India at the material time. This circumstance reinforce
the inference of its being smuggled gold. (c) These gold biscuits were found
concealed and stitched in the folds of a jacket specially prepared for this
purpose. (d) The gold, was in the shape of gold biscuits and was of huge value,
which at the then prevailing market rate was Rs. 1,85,000.
(e) After the seizure of this gold the
accused absconded and continued to be a fugitive from justice till March 14,
1962.
The circumstances catalogued above
irresistibly read to the conclusion that the gold in question is smuggled gold,
having been recently brought into India from a foreign country without payment
of duty, and further it had been brought into India in contravention of the
Notification dated March 25, 1947 issued by the Central Government under
Section 8(1) of Foreign Exchange Regulation Act, 1947 prohibiting the import
into India gold without the permission of the Reserve Bank. As already noticed,
this gold was in the shape of biscuits of 24 carat purity and bore foreign
markings. The accused respondent-as held by the courts below-was found in
conscious 'possession' or 'keeping' of this gold of foreign origin about 15
years after its import into India had been banned Therefore, it was for the
accused respondent 350 to show that it had been brought into India-with the
permission of the Reserve Bank. The existence of this fact viz., whether it had
been imported with or without the necessary permission of the Reserve Bank, was
matter within the peculiar knowledge of the accused-respondent. It was,
therefore, for the accused to rebut the inference which arose under Section
114, Evidence] Act from the surrounding circumstances of the case, that it was
contraband gold, smuggled into India. Once it is held that the accused was in
conscious possession or "keeping" of this smuggled gold, it will
follow as a necessary corollary therefrom that he had the mens rea requisite
under clauses (a) and (b) of Section 135(1). It may be remembered that
smuggling, particularly of gold, into India affects the public economy and
financial stability of the country. The provisions of Section 135 (1) and like
statutes which are designed to suppress smuggling have to be construed in
accordance with the Mischief Rule first enunciated in Heydons case. Accordingly
the words "acquires possession" or keeping" in clause (b) of
Section 135(l) are not to be restricted to "possession" or
"keeping" acquired as an owner or a purchaser of the goods. Such a
narrow construction-which has been erroneously adopted by the High Court-in our
opinion, would defeat the object of these provisions and undermine their
efficacy as instruments for suppression of the mischief which the Legislature
had in view. Construed in consonance with the scheme of the statute, the
purpose of these provisions and the context, the expression "acquires
possession" is of very wide amplitude and will certainly include the
acquisition of possession by a person in a capacity other than as owner or
purchaser. This expression takes its colour from the succeeding phrase
commencing with the word "or" which is so widely worded that even the
temporary control or custody of a carrier, remover, depositor, harbourer,
keeper, or dealer of any goods which he knows or has reason to believe to be
smuggled goods or prohibited goods (liable to confiscation under Section 111) cannot
escape the tentacles of clause (b). The expressions "keeping" and
"concealing" in the second phase of clause (b) also cover the present
case.
From the above discussion, it is clear that
the High Court was in error in acquitting the appellant of the charges under
Section 135(1), (a) & (b) of the Customs Act.
This takes us to the charge under Rule
126H(2) (d) read with Rule 126P(2)(iv) of the Defence of India Rules, 1962.
These Rules so far as material for our
purpose, may be extracted as under:
351 "126H(2). Save as otherwise provided
in this Part,- (d) no person other than a dealer licensed under this Part shall
buy or otherwise 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 of 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 Balakrishna Chhaganlal v. State
of West Bengal; Rule 126P(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 cons trued
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 more 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 352
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 with 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 benefit 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 acquittal of the accused, Natwarlal Damodardas Soni, and
convict him under Section 135(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 Imprisonment. We further convict him under Rule
126P(2) of the Defence of India Rules, 1962 and sentence him to six months
rigorous imprisonment. The sentence on all the counts shall run concurrently.
The bail of the accused-respondent is cancelled. He must surrender to serve out
the sentence inflicted on him.
P.B.R Appeal allowed.
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