Sevantilal Karsondas Modi Vs. State of
Maharashtra & ANR  INSC 24 (30 January 1979)
FAZALALI, SYED MURTAZA
CITATION: 1979 AIR 705 1979 SCR (2)1160 1979
SCC (2) 58
Evidence Act 1972 (1 of 1872)-S. 24-Accused
alleged that he was assaulted by Customs Officials-No direct evidence
available-Surrounding circumstances-If could be taken into account-Customs
Officials whether person in authority-Confession made to customs officials if
admissible in evidence.
On receipt of information that smuggled gold
was stored in it, a large number of senior officials of the Customs Department
surrounded the flat belonging to the brother-in- law of the appellant and
started searching it. According to the prosecution, while the search was on,
the appellant was found peeping from outside through the grille forming part of
the flat, and started running away, on seeing that the search was being carried
on in the flat. He was chased by the Customs Staff and caught. Later his confession
was recorded. Along with the appellant several other persons had also been
tried for the same offence. The trial court convicted and sentenced the
appellant of an offence under s.
120B IPC read with s. 135(1)(a) of the
On appeal the High Court found that the
charge under s. 135(1)(a) and (b) of the Customs Act was not sustainable but
holding that the offence under other heads was proved, it upheld the
appellant's conviction and sentence.
It was contended on behalf of the appellant
that the confession was the result of an assault on him by the Customs
Officials, which not being voluntary was inadmissible in evidence under s. 24
of the Evidence Act.
Allowing the appeal.
HELD: 1. (i) It is unsafe to regard the
appellant's confession as voluntary and therefore trustworthy. The concerned
Customs Officials were "persons in authority" within the meaning of
that expression used in s. 24 of the Evidence Act. The confession may well have
been obtained in a manner which would bring it within the ambit of s. 24 of the
Evidence Act. The appellant has been able to prove the existence of
circumstances which make it highly probable that his confession is hit by the
mandate in section 24.
[1169H-1170A, 1166C] (ii) Although there is
no direct evidence that force was used on the appellant to extract a confession
the surrounding circumstances prevalent at the relevant time in the Customs
House where the statement was recorded indicate that all was not well with the
manner in which the interrogation of various accused was being carried on. They
indicate that the Customs Officials did not stick to ethical standards in the
performance of their duties and exhibited much zeal in bringing the captives to
book and had transgressed the limit set by law. [1166E, 1169B] (iii) One of the
accused in this case was found to have seven injuries on his person. The stand
of that accused that he was coerced into making a confession, received support
from the testimony of the doctor who examined 1161 him so that the probability
appears to be that the accused received his injuries on the hands of the
Customs staff. In the absence of an explanation of the prosecution as to the
situation in which he was beaten, it is reasonable to presume that the stand
taken by him was correct and that the injuries were inflicted as a measure of
coercion adopted to secure his confession. Taking these circumstances into
consideration, it is unsafe to regard the appellants confession too as
voluntary.[1166F, 1168C, 1169G] Besides, the plea that he had been coerced into
making the confession was taken at the earliest opportunity i.e. on the day
following his release from custody on bail. [1169D]
2. Being a close relation of the owner of the
flat, the appellant was perhaps sharing the flat with him and so had duplicate
set of keys; his brother-in-law might have given the Bandi found on the
appellant not for the purpose of carrying the gold but just for use as an
It is also possible that the appellant became
nervous, that he thought that he would be implicated in the crime and
therefore, might have started running away on seeing the Customs Officers in
the house. Therefore, these factors on which the High Court relied for
sustaining his conviction cannot be regarded as incriminating circumstances.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 196 of 1973.
Appeal by Special Leave from the Judgment and
Order dated 7-8-1973 of the Bombay High Court in Criminal Appeal No. 222 of
S. B. Bhasme, P. G. Gokhale and B. R.
Agarwala for the Appellant.
M. K. Ramamurthi, M. N. Shroff, Mrs.
Hemanlaika Wahi for the Respondent No. 1.
R. N. Sachthey for Respondent No. 2.
The Judgment of the Court was delivered by
KOSHAL, J.-This appeal by special leave is directed against the judgment dated
7th August 1973 of the Bombay High Court upholding the conviction of Sevantilal
Karsondas Modi (the sole appellant before us) for an offence under section
120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1)
of section 135 of the Customs Act 1962, and a sentence of rigorous imprisonment
for a year recorded by the Chief Presidency Magistrate, Bombay.
2. The appellant was one of 30 accused
persons against whom the police initiated proceedings in the court of the trial
Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had
absconded and could not be apprehended. The case against accused Nos. 18 and 19
was allowed to be withdrawn by the learned Magistrate on an application made by
the Public Prosecutor under section 1162 494 of the Code of Criminal Procedure.
Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistrate
for want of evidence against them. Charges were framed by him on 10 counts
against the other 20 accused who were tried in consequence. At the trial, 266
witnesses were examined in support of the prosecution case and 6 in defence. Accused
Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the trial,
while 13 of those charged were convicted and sentenced to various terms of
imprisonment. All the 13 last mentioned went up in appeal to the High Court who
acquitted accused Nos. 1, 21, 22 and 23. Accused No. 13 happens to be the
appellant before us. He was convicted and sentenced by the learned Magistrate
as aforesaid and also on a separate charge for an offence, under clauses (a)
and (b) of sub- section (1) of section 135 of the Customs Act and sentenced to
rigorous imprisonment for six months in consequence. His conviction on that
charge, however, was set aside by the High Court, against whose judgment, as already
stated, special leave to appeal was granted to him by this Court.
3. The prosecution case in so far as it is
relevant for the purpose of this appeal may be briefly stated. V. K. Asthana,
(P.W. 228) who was then the Deputy Director in the Directorate of Revenue
Intelligence in the Department of Customs at Bombay and is hereinafter referred
to as 'Asthana', received information in the first half of September 1966 to
the effect that flat No. 2 forming part of the building known as Sagar Mandir
and situated in that locality of Bombay which is called 'Shivaji Park' was
being used for storage of smuggled gold and disbursement thereof to its
purchasers. After the flat had been kept under watch for a few days by some
officials of the Department, a decision was taken by Asthana to raid the
premises. The raiding party which consisted of senior Customs officers, took
positions in the vicinity of Sagar Mandir on the morning of 14th September
1966. They included B.M. Sevalia, Preventive Officer, Bombay Customs (P.W. 7
and hereinafter referred to as 'Sevalia'), G. N. Alreja, Preventive Officer,
Bombay Customs (P.W. 34 and hereinafter mentioned as 'Alreja), P. G. N.
Ayengar, Appraiser in the Directorate of Revenue Intelligence (P.W. 144 and
hereinafter called 'Ayengar') and D.G. Mugwe, Principal Appraiser in the said
Directorate (P.W. 152 and hereinafter referred to as 'Mugwe'). Sevalia was
deputed to watch the movements of persons entering the flat and to give a
signal on the arrival of the suspects. At about 8.50 A.M., accused No. 12 was
seen entering the flat and Sevlalia alerted the other members of the raiding
party by giving the agreed signal.
Half an hour later, a car stopped at the
entrance to the compound of the building and 1163 accused Nos. 5, 6 and 7 alighted
therefrom. Accused No. 5 went towards the concerned flat but got suspicious on
noticing the presence of strangers near the entrance. He turned back and so did
his two companions. All three of them took to their heels but were caught by
the raiding party on a direction by Mugwe. Accused No. 12 was found inside the
flat. The person of each one of accused Nos. 5, 6 and 7 was searched and
yielded 200 slabs of gold weighing 10 tolas each. All the slabs bore foreign
markings and were contained in jackets having long pockets and worn by each of
the captives. Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing
accounts exhibit 'O' were found lying in the passage forming part of the flat.
Bandi exhibit J-2 was secured from a room of the flat. A search of the person
of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the
flat, and sheets of accounts exhibit 'S'.
While the search was going on, accused No. 13
was found peeping from outside through a grille forming part of the flat but
started running away on seeing what was happening inside. He was chased and
captured and two keys were seized from his person. One of them was found to fit
the lock on the outer door of the flat and the other to fit the latch therein.
He was also found wearing a bandi similar to bandi exhibit J-2. At his instance
four slabs of gold and 10 gold bangles, each weighing 10 tolas, were recovered
from underneath the mattress lying on a bed in the flat.
Accused Nos. 5 to 7 and 13 were interrogated
by the Customs officials. The statement of accused No. 13 exhibit Z-383 was
recorded by Ayengar on the 15th of September 1966.
In that statement, the appellant gave an
exhaustive account of the circumstances in which he happened to come to Bombay
and made his services available to the principal accused named J. K. Shah. The
long and short of the statement may be summarised thus:
One day J. K. Shah called accused No. 13,
gave him some cloth and sent him in the company of one Goverdhan Das to have
the cloth tailored into bandis of a special type having two wide and long
pockets in the front. The cloth supplied was thick and strong. A few days after
the bandis were ready, accused No. 13 was taken to the flat in question by his
sister's husband, named Natwarlal (accused No. 12) or by accused No. 15.
Thereafter accused No. 13 visited the flat
several times when he would receive bandis containing gold brought from outside
and store them in the flat or would remove such bandis from the flat to other
1164 places in town. J. K. Shah had given him keys of the flat. Whatever gold
was removed by him from the flat, was either deposited by him in a room on the
second floor of a building situated in Modi Street or delivered to J. K. Shah
in the latter's office on the 3rd floor of building No. 111 situated in
The room in Modi Street had a telephone the
number whereof was 262283 and a key of this room was supplied to him by J. K.
Shah. He used to receive orders either from J. K. Shah or from accused No. 15
to go to the flat in Sagar Mandir and receive the gold there. He received gold
in this way on the 12th and 13th of September 1966. On the day of his capture
he was in the room in Modi Street when he received a telephone call from J. K.
Shah at 11 or 11.15 A.M. requiring him to visit the flat in Sagar Mandir and
find out if any trouble was brewing and that if that was so, J. K. Shah was to
be informed on the telephone. Accused No. 13 rushed to Sagar Mandir in a taxi
and tried to find out from outside if there was anything wrong. For that
purpose he looked through a broken ventilator. While he was coming towards the
road on the beach nearby he was detained and was taken inside the building.
While the above statement was being recorded,
accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons
from whom he used to receive gold at Sagar Mandir.
4. The evidence relied upon by the
prosecution against accused No. 13 may be split up under the following heads:
(a) He was seen visiting the flat in Sagar
Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who
were watching the premises under the orders of Mugwe.
(b) He was peeping into flat No. 13 between
11 A.M. and 12 noon on the 14th of September 1966.
(c) When he found that the flat was under
search by officers belonging to the Customs Department, he tried to run away.
(d) He was found in possession of keys
fitting the locks of the flat.
(e) He was wearing a bandi similar to bandi
exhibit J-2 which is a special type of bandi suitable for carrying gold slabs
1165 (f) 4 slabs of gold and 10 gold bangles
were recovered from underneath the mattress at his instance.
(g) The confession made by him and contained
in statement exhibit Z-383.
The learned trial Magistrate found all the
above heads to have been established and that is why he convicted and sentenced
accused No. 13 on two counts. The High Court took a different view in relation
to heads (a) and (f). It was of the opinion that the identification of accused
No. 13 by the Customs officials on the 8th, 9th and 13th of September 1966
could not safely be relied upon as they had seen people coming into and going
out the Sagar Mandir only from a distance and for very short periods of time so
that their view of such people could possibly be mere "fleeting
glances". It further held the alleged recovery of four gold slabs and 10
gold bangles to be unreliable as the marginal witness to the recovery memo who
was produced in court by the prosecution did not support it and stated that he
had not seen accused No. 13 pointing out the slabs and the bangles. The High
Court concluded therefore that the charge under clauses (a) and (b) of
sub-section (1) of section 135 of the Customs Act was not sustainable. However
it found the other heads of evidence proved and on the basis thereof upheld the
conviction and sentence in relation to the charge of conspiracy to commit the
other offences just above described.
5. After hearing learned counsel for the
parties at length we find ourselves unable to uphold the impugned judgment in
so far as accused No. 13 is concerned. The circumstances that he was found
peeping into the flat, that he tried to run away on seeing the Customs officials
searching the premises, that he was in possession of duplicate keys of the flat
and that he was found wearing a bandi similar to bandi exhibit J-2 are not
incompatible with his innocence. He was a close relation of accused No. 12 who
has been found to the person really incharge of the flat and it would thus be
natural for him (accused No. 13) to share the flat with the permission of
accused No. 12. In so living with his brother-in-law he may have been given to
wear the bandi found on his person not for the purpose of carrying gold but
just for use as ordinary raiment. Again, in a city like Bombay it is not
unusual for persons sharing a particular accommodation to be provided with
separate sets of keys for each in order to facilitate ingress or egress at will.
Further, an innocent man finding his premises being watched by persons in
authority may well feel funky at the prospect of a false implication on the
basis of a mere 1166 suspicion (which may or may not be well-founded and may
try to make himself scarce. Without more, the circumstances covered by heads
(b), (c), (d), and (e), therefore, cannot be regarded as incriminating
circumstances. So the conviction really rests on the confession attributed to
the appellant. If it is found to be voluntary and true it may receive some
support from the four heads of evidence just above described. If, on the other
hand, the confession appears to be either untrue in any material particular or
having been caused by any inducement, threat or promise such as is described in
section 24 of the Evidence Act, it must fall and with it fall the other heads
of evidence, leaving no material to support the conviction. As it is, we find
that the appellant has been able to prove the existence of circumstances which
make it highly probable that his confession is hit by the mandate in section 24
above mentioned. Our reasons for coming to this conclusion follow.
6. The case set up by accused No. 13 in so
far as his confession is concerned, mainly consists of a plea that it was the
result of an assault on him by the Customs officers including Ayengar and
Sevalia and that the latter had forced him into making an endorsement in his
own hand-writing under the confessional statement to the effect that statement
was voluntary and had been explained to him by Sevalia.
Naturally, the story of the assault has been
stoutly denied by Ayengar and Sevalia; but then the circumstances prevailing at
the relevant time in the Customs House where the statement was recorded
definitely indicate that all was not well with the manner in which the
interrogation of various accused was being carried on. In this connection the
outstanding feature of the situation is the fact that accused No. 15 when
examined by Dr. S. R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M.
was found to have on his person seven injuries which the doctor has described
"(1) Ecchymosis below right eye, outer
part, 1/2"x1/3". blackish colour.
(2) Ecchymosis below left eye, middle,
1/4"X1/4" blackish colour.
(3) diffused contused area,
21/2"X3", on right thigh, upper part.
(4) Contused area on right buttock, 3" x
2", lower part, wheal (?) marks seen.
(5) diffused contused area on left thigh,
back and outer part, 5" X 2", wheal (?) marks seen transverse.
1167 (6) Transverse wheal (?) marks on back
of left knee.
(7) Contused area on back of left leg,
2" X 1".
According to the doctor, these injuries
appeared to have been caused two to four days earlier. Admittedly accused No.
15 was apprehended by the Customs staff on the 14th September 1966. No
explanation whatsoever is offered for his injuries by the prosecution but the
stand taken by accused No. 15 himself in this behalf may be stated in his own
words "At that time, there were six Customs Officers around me. In the gallery,
I was again shown the 4 keys. I was again asked about the said keys and I had
again given the same reply. The said officers on hearing this, get enraged and
began to say that I was stating falsehoods. One of the officers then asked me
to take out my clothes. I had then worn one under wear and a pant and one
bush-coat and a ganji. I was then asked to remove my pant as well as my
underwear by the said officer and I did so accordingly against my will.
That officer then ordered me to sit in the
position of "a chair". I was so asked to sit like a chair without the
support of a wall even to my back. The six officers were then standing around
me at that time. After making me to sit in that chair position they began to
ask me about the said keys. I had again given the same reply about the said
keys. If I moved a little from the position of a chair given to me, I was
kicked by all the officers immediately. I was able to sit in that position for
4-5 minutes. I used to fall down thereafter. I used to be kicked there for,
made to stand again and asked to resume the same position. In this way, I had
fallen and had been assaulted again and again by the said officers for about an
hour or so.
While I was so being questioned and made to
sit in that position again and again, one of the officers had gone out and had
returned with a ruler in hand having a round shape. As I was made to sit in
that position of a chair, I often used to move there from, the officers
immediately used to assault me and I used to get up thereby. Out of the Custom
Officers the officer who had the ruler in his hand used to assault me
therewith, and the other officers used to assault me with kicks. I had been
assaulted with that ruler on my left buttock, on my right buttock, on the back
portion of the calf of my left, leg, on my right thigh, on the backside of my
both legs etc.
1168 I had received injuries at all these
places stated by me above and as a result of this assault on me, I could not
even stand up. Throughout the assault; I was being questioned again and again
about the said keys by all the said officers and at every time I was stating
that I did not know anything more about the same. Thereafter I had fallen down
on the ground with my face towards the ground. All the said six officers then
went away." This stand may not be devoid of exaggeration and embellishment
but it receives great support from the testimony of Dr. Joglekar (D.W.I.) so
that the probability appears to be that accused No. 15 received his injuries at
the hands of the Customs staff and there being no explanation on the part of
prosecution as to the situation in which he was beaten, it is reasonable to
presume that the stand taken by him is correct and that the injuries were
inflicted on him as a measure of coercion adopted to secure his confession.
In coming to a contrary conclusion, the High
Court was mainly influenced by the fact that although accused No. 15 had filed
a complaint in court against the concerned officers of the Department of
Customs, he did not prosecute it but had it dismissed for default. The High
Court observed in this connection:
"The only explanation for this unusual
attitude offered by him to the Court is that he was afraid of vindicative
attitude from the officers. We have not been able to conceive how officers
could have adopted any vindicative attitude, when accused No. 15 was not
concerned with any offence. Be that as it may, the fact remains that the
complaint was not prosecuted and the evidence was recorded behind the back of
It is not possible to hold on the present
material that assaulting by the officers was for the purposes of extorting some
confession and such assault alone was the cause of the injuries received by
him. Beyond, therefore, creating a fog of suspicion, the injuries proved to
have been caused to accused No. 15, cannot indicate that all the accused were
subjected to torture, assault and pressure for giving statements to the liking
of officers or compelling them to sign the prepared statements." We do not
appreciate this approach to the determination of the voluntary nature of the
confession of accused No. 15.
As we have already pointed out, the time of
infliction of injuries coincided with the day on which accused No. 15 was
apprehended and his confession was recorded. In this situation it was the
imperative duty of the 1169 prosecution to explain the circumstances in which
it became necessary for force to be used by the Customs staff on the person of
accused No. 15 and in the absence of any such explanation there is no reason why
his plea should not be taken at its face value.
7. We are of course not directly concerned
with the voluntary nature of the confession of accused No. 15 in this appeal
but the circumstances discussed in the last paragraph indicate that the Custom
of officials did not stick to ethical standards in the performance of their
duties and, on the other hand, exhibited such a zeal in bringing the captives
to book as transgressed the limits set thereon by law. We have already alluded
to the fact that the High Court itself did not regard the recovery of four gold
slabs and 10 gold bangles alleged to have been made at the instance of accused
No. 13 to be trustworthy. Besides, the plea of accused No. 13 that he was
coerced into making the confession was taken at the earliest opportunity, i.e.,
on the 20th of September 1966 which was the day next to that of his release
from custody on bail. That plea is contained in letter exhibit 29 addressed by
him on that date to the Additional Collector of Customs, Bombay, which contained
the following averments:- "From the 14th instant at 12 noon till about 3
p.m. I was locked up along in one room with some Customs Officers who
continuously interrogated me, threatened and physically assaulted me to make
and sign a statement prepared by them after ascertaining a few personal
questions from me pertaining to my family and myself. I was not allowed to
sleep during the entire night of the 14th/15th and was not allowed to see any
person. The statement was written out by the officers themselves in English
language and it was not explained to me and my signature was obtained which I
have signed in Gujarathi. As a result of this threat, coercion and complete
exhaustion, I had no alternative but to sign the statement after which only I
was allowed to rest." Taking note of these circumstances we would consider
it extremely unsafe to regard the confession exhibit Z-383 signed by the
appellant as having been made by him voluntarily and therefore trustworthy. The
appellant, in our opinion, has shown the existence of circumstances which make
it appear to the Court that the confession may well have been obtained in a
manner which would bring it within the ambit 1170 of section 24 of the Evidence
Act, it being undisputed that the concerned officers of the Department of
Customs were "persons in authority" within the meaning of that
expression as used in the section.
8. In the result the appeal succeeds and is
The judgment of the High Court is reversed,
the conviction recorded against and the sentence imposed upon the appellant by
the learned trial Magistrate and upheld by the High Court are set aside and he
is acquitted of the charge in its entirety.
N.V.K. Appeal allowed.