State of
Gujarat Vs. Mohanlal Jitamaljiporwal & Anr
[1987] INSC 84 (26
March 1987)
Thakkar,
M.P. (J) Thakkar, M.P. (J) Natrajan, S. (J)
CITATION:
1987 AIR 1321 1987 SCR (2) 677 1987 SCC (2) 364 JT 1987 (1) 783 1987 SCALE
(1)598
CITATOR
INFO : RF 1992 SC 604 (49)
ACT:
Customs
Act, 1962: s. 123 and s. 135(1) read with s.
III-Presumption
that goods seized were smuggled goods When to be raised--'Reasonable
belief'--Connotation of.
Code
of Criminal Procedure, 1973:s.391--Additional evidence to prove a document--Admissibility
of--Lapse of six years--Whether material.
Practice
& Procedure Criminal Trial--Economic offences--Cause of the
community-Courts to give equal treatment.
HEAD NOTE:
The
respondent accused, a rail passenger, was found by the Customs Officer wearing
a waistchain weighing 820 gms., made of pure gold and coated with mercury so as
to give an appearance of being made of silver. The goldsmith who was summoned
to the railway station to test the article on the spot certified that it was
made of pure gold. The article was seized and he was charged for offences under
s. 85 of the Gold (Control) Act, 1968 and s. 135(1) read with s. III of the
Customs Act, 1962. The trial court held that what was seized was an 'ornament'
and not 'primary gold' and acquitted the accused respondent of the charge under
s. 85 of the Gold (Control) Act. Disregarding the evidence of the goldsmith it
took the view that the presumption under s. 123 of the Customs Act could not be
raised as the Customs official who had made the seizure could not have
entertained a reasonable belief that the article in question was made of
smuggled gold. It also found fault in regard to the proof of report of the Mint
Master that the article in question was made of pure gold of the specified fineness.
The
High Court confirmed the acquittal and rejected the request made by the
prosecution for adducing additional evidence under s. 391 of the Code of
Criminal Procedure in order to remove the alleged formal defect in the proof of
the Mint Master.
678
Allowing the appeal by the State, the Court,
HELD:
1.1 The view taken by the High Court that the presumption under s. 123 of the
Customs Act that the seized article was smuggled gold could not be raised was
altogether unreasonable and cannot be sustained. [681E-F]
1.2
Whether or not the official concerned had seized the article in the
"reasonable belief' that the goods were smuggled goods was not a question
on which the Court could sit in appeal. If prima facie there were grounds to
justify the belief the Courts have to accept the officer's belief regardless of
the fact whether the Court of its own might or might not have entertained the
same belief. Section 123 of the Customs Act does not admit of any other
construction. [682A-C] Pukhran v. D.R. Kholi, [1962] 3 Supp. S.C.R. 866,
applied.
1.3.
In the instant case, the conduct of respondent No.1 in coating the article of
pure gold with mercury to make it appear as if it was of silver was itself a
conduct which could have provided the basis for entertaining a reasonable
belief that the article was a smuggled article. This was an extremely unusual
circumstance which would have aroused the suspicion of anyone. When the
goldsmith was summoned at the railway station to test the article on the spot,
and he expressed the opinion that it was made of pure gold, there was no scope
for taking any other view. The acceptance of this evidence would, in view of
the provisions of s. 123 of the Customs Act, result in the burden of proof
being shifted on the person from whom the article was seized to establish that
it was not smuggled gold, which would justify raising the presumption that the
article in question was made of smuggled gold. [683C; 681E] lsardas Daulat Ram
& Ors. v. The Union of India & Ors., [1962] Suppl. 1 S.C.R. 358, referred to.
2. The
High Court was altogether unjustified in rejecting the application of the
prosecution invoking the powers of the Court under s. 391 of the Code of
Criminal Procedure for reception of additional evidence. The prayer was rejected
by the High Court on the ground that it did not consider it 'expedient in the
interests of justice to open a new vista of evidence' in view of the fact that
the offence had taken place six years back. The mere fact that six years had
elapsed, for which time lag the prosecution was in no way responsible was no
good ground for refusing to act in order to promote the ends of justice in an
age when 679 delays in the Court have become very common.
The
opinion of the Mint Master, which had admittedly been placed on record, though
had not been formally proved, completely supported the case of the prosecution
that the gold was of the specified purity. To deny the opportunity to remove
the formal defect was to abort a case against an alleged economic offender. The
matter remitted to the High Court. An appropriate direction shall be issued for
recording of the evidence to prove the report of the Mint Master. [683F-H;
684A; E-F] Ends of justice are not satisfied only when the accused in a
criminal case is acquitted. The Community acting through the State and the
Public Prosecutor is also entitled to justice. The cause of the Community
deserves equal treatment at the hands of the court in the discharge of its
judicial functions. The entire Community is aggrieved if the economic offenders
who ruin the economy of the State are not brought to book. [684A-B]
CRIMINAL
APPELLATE JURISDICTION: Criminal Appeal No. 74 of 1978.
From
the Judgment and Order dated 3.11.1976 of the Gujarat High Court in Criminal
Appeal No. 95 of 1975.
Girish
Chandra and M .N. Shroff for the Appellant.
Dalveer
Bhandari and S.K. Jain for the Respondents.
The
Judgment of the Court was delivered by THAKKAR, J. A passenger travelling by a
train, (respondent no. 1 herein) who had adorned his waistline with a waistchain
(kandora) weighing 820 grammes, which according to the prosecution, was made of
pure gold and was coated with mercury so as to give an appearance of being made
of silver was acquitted by the trial court relying on the evidence of a licensed
gold dealer as a defence witness, who, as per the narration in para. 17 of the
judgment of the trial court, stated that:" ....... such chains are put on
as 'kandora' on the waist of ladies and gents in Rajasthan. He had sold such kandoras
and seen people putting on such kandoras in Rajasthan State on their waist. Such chains or kandoras
can be prepared out of pure gold as well as mixed gold. In old times 680 such kandoras
used to be prepared out of pure gold. In these days such type of kandoras are
sold out to us by people.
The
witness further states that the design of muddamal chain was much in vogue in
Rajasthan as because of unsoldered hooks it would fetch full value on sale. By
pure gold he meant gold of more than 99.60 purity or 24 carats purity.
According to him about 25 years back sharaps of Rajasthan were not allowed to
sell gold of less purity than 99.60 under Mewari State Law ....... ".
The
Learned Trial magistrate persuaded himself that the aforesaid evidence
established that it was an ornament and not primary gold. The learned
Magistrate acted with an impropriety in making himself a witness for the defence
by observing:" ..... I have seen the seized gold chain myself in court. It
cannot be called in unfinished state or form. It is an ornament ..... "
The trial court in these premises held that what was seized was an 'ornament'
and not 'primary gold'. The trial court accordingly acquitted the
respondent-accused of the charge for an offence under Section 85 of the Gold
(Control) Act of 1968. It is a matter of great concern that the High Court
confirmed this finding by overlooking a significant circumstance which stood
out a mile. If the chain was bona fide worn as an ornament, it would not have
been plated with silver.
The
desire to show off being the basic purpose of wearing an ornament, one may
subject an ornament of silver to gold plating. But one would not subject an
ornament of pure gold to silver plating. It was obvious that it was a deceitful
device to evade the law. Be that as it may, this aspect need not be probed
further in view of the fact that the appeal preferred by the State against the
order of acquittal in so far as it concerns the offence under Section 85 of the
Gold (Control) Act, 1968 was not pressed. Suffice it to say that the approach
made by the trial court evinces a permissive and over-indulgent attitude
towards the violators of laws enacted to prevent and punish economic offences.
The
occasion for approaching this Court has been provided by the view taken by the
High Court in regard to the charge for an offence under Section 135(1) read
with Section III of the Customs Act. The charge against respondent no. 1 was
that he was concerned with acquisition, carriage, keeping or concealing with
the goods which were liable to be confiscated under Section III having regard
to the fact that there was a prohibition against the import into India of goods
which 681 were found in his possession namely pure gold of the specified
fineness i.e. 99.60 or 24 carat. It needs to be recalled that Respondent No. 1
had adorned himself with a gold chain which was coated with mercury in order to
give it an appearance that it was made of silver. The trial court disregarded
the evidence of P.W.3, the gold-smith who certified that the chain was made of pure
gold and that the presumption under Section 123(1) of the Customs Act could not
be raised as in the opinion of the learned Magistrate, P.W. 1 Mahida,
Superintendent of Customs who had made the seizure could not have
"entertained a reasonable belief" that the article in question was
made of smuggled gold. The trial court also found fault in regard to the proof
of report of the Mint Master that the article in question was made of pure gold
of the specified fineness.
The
High Court confirmed the acquittal on all the three grounds. The request made
by the learned Assistant Public Prosecutor for adducing additional evidence
under Section 391 of the Code of Criminal Procedure in order to remove the
alleged formal defect in the proof of the Mint Master was rejected. That is why
the matter has been brought before this Court by way of the present appeal.
P.W.
1, Superintendent of Customs Shri Mahida testified that he had seized the
article in question in the reasonable belief that the same was an article made
of smuggled gold.
The
acceptance of this evidence would result in the burden of proof being shifted
on the person from whom the article was seized to establish that it was not
smuggled gold in view of the statutory provision Section 123 of Customs
relating to burden of proof which would justify raising the presumption that
the article in question was made of smuggled gold. Whether or not the
1.
"123. Burden of proof in certain cases--(1) Where any goods to which this
section applies are seized under this Act in the reasonable belief that they
arc smuggled goods, the burden of proving that they are not smuggled goods
shall (a) in a case where such seizure is made from the possession of any
person.-(i) on the person from whose possession the goods were seized; and (ii)
if any person, other than the person from whose possession the goods were
seized, claims to be the owner thereof, also, on such other person;
(b) in
any' other case, on the person, if any who claims 10 be the owner of the goods
seized,
2.
This section shall apply to gold, diamonds, manufacturers of gold or diamonds. watches
and any other class of goods which the Central Government may by notification
in the Official Gazette specify." 682 official concerned had seized the
article in the "reasonable belief" that the goods were smuggled goods
is.not a question on which the Court can sit in appeal. The law to this effect
has been declared in no ambiguous terms in Pukhran v. D.R. Kholi, AIR 1962 S.C.
1559 = 1962 (3) Supp. S.C.R. 866. This Court has administered caution to the
Courts not to sit in appeal in regard to this question and has observed that if
prima facie there are grounds to justify the belief the Courts have to accept
the officer's belief regardless of the fact whether the court of its own might
or might not have entertained the same belief. The law declared by this Court
is binding to the High Court and it was not open to the High Court to do
exactly what it was cautioned against by this Court. Section 123 of the Act
does not admit of any other construction. Whether or not the officer concerned
had entertained reasonable belief under the circumstances is not a matter which
can be placed under legal microscope, with an over-indulgent eye which sees no
evil anywhere within the range of its eyesight. The circumstances have to be
viewed from the experienced eye of the officer who is well equipped to
interpret the suspicious circumstances and to form a reasonable belief in the
light of the said circumstances. In the present case the concerned official had
mentioned three circumstances which made him entertain the reasonable belief
that the article was a smuggled one viz:
(1) On
the basis of the prior information he was alert and was on the look out,
watching the movements of respondent no. 1.
(2)
The chain which had adorned the waistline of respondent no. 1 was coated with
mercury so as to give an appearance of being made of silver.
(3) As
per the opinion of the goldsmith it was made of pure gold.
If
these circumstances did not make the Superintendent of Customs entertain a
reasonable belief that it was a smuggled article, he was not fit to be an
Officer of the Customs Department. The circumstance that the chain was coated
with mercury and given an appearance of having been made of silver though it
was made of pure gold of 99.60 purity or 24 carat, was sufficient even for a
layman, not to speak of a Customs official, to entertain the belief that it was
smuggled gold. Would any one who was wearing an article as an ornament,
evidently for ostentious purposes, given the article of pure gold the
appearance of being made of silver? To repeat the observation made earlier one
might coat an article of silver to give an appearance of having been made of
gold but no one would ordinarily take the trouble and incur the expenditure to
683 coat an article of gold in order to give it an appearance of having been
made of silver. This was an extremely unusual circumstance which would have
aroused the suspicion of anyone. When the goldsmith was summoned at the Railway
Station to test the article on the spot, and he expressed the opinion that it
was made of pure gold, there was no scope for taking any other view. Even if a
layman, let alone a judge, were to ask himself the question as to whether in
these circumstances he would have entertained a reasonable belief that the
article was a smuggled article inasmuch as gold of this purity is manufactured
only in foreign countries which have sophisticated equipment and the further
fact that an attempt to camouflage the article was made by the person concerned
his commonsense would not have given himself any other answer. The conduct of
respondent no. 1 in coating the article of pure gold to make it appear as if it
was of silver was itself a conduct which could have provided the basis for
entertaining a reasonable belief it being a relevant piece of evidence as per
the law declared by this Court in Isardas Daulat Ram & others v. The Union
of India & others, [1962] Suppl. 1 S.C.R. 358 = A.I.R. 1966 SC, 1867.
The
view taken by the High Court is altogether unreasonable and accordingly it
cannot be sustained.
The
next question which arises is as regards the request made by the learned
Assistant Public Prosecutor for adducing additional evidence in order to prove
letter Ex. 26 received from the Mint Master certifying that the article in
question was made of gold of the purity of 99.60. The request was made in order
to invoke the powers of the Court under Section 391 of the Code of Criminal
Procedure, 1973, which inter alia provides that in dealing with any appeal
under Chapter XXIX the appeal court, if it thinks additional evidence to be
necessary, shall record its reasons and may either take such evidence itself or
ask it to be taken by a Magistrate. The High Court rejected the prayer on the
ground that it did not consider it "expedient in the interests of justice
to open a new vista of evidence" in view of the fact that the offence had
taken place six years back. The mere fact that six years had elapsed, for which
time-lag the prosecution was in no way responsible, was no good ground for
refusing to act in order to promote the interests of justice in an age when
delays in the Court have become a part of life and the order of the day. Apart
from the fact that the alleged lacuna was a technical lacuna in the sense that
while the opinion of the Mint Master had admittedly been placed on record it
had not been formally proved the report completely supported the case of the
prosecution that the gold was of the specified purity. To deny the opportunity
to remove the formal defect was to abort a case 684 against an alleged economic
offender. Ends of justice are not satisfied only when the accused in a criminal
case is acquitted. The Community acting through the State and the Public
Prosecutor is also entitled to justice. The cause of the Community deserves
equal treatment at the hands of the court in the discharge of its judicial
functions.
The
Community or the State is not a person-non-grata whose cause may be treated
with disdain. The entire Community is aggrieved if the economic offenders who
ruin the economy of the State are not brought to books. A murder may be
committed in the heat of moment upon passions being aroused. An economic
offence is committed with cool calculation and deliberate design with an eye on
personal profit regardless of the consequence to the Community. A disregard for
the interest of the Community can be manifested only at the cost of forfeiting
the trust and faith of the Community in the system to administer justice in an
even handed manner without fear of criticism from the quarters which view white
collar crimes with a permissive eye unmindful of the damage done to the
National Economy and National Interest. The High Court was therefore altogether
unjustified in rejecting the application made by the learned Assistant Public
Prosecutor invoking the powers of the Court under Section 391 of the Code of
Criminal Procedure. We are of the opinion that the application should have been
granted in the facts and circumstances of the case with the end in view to do
full and true justice. The application made by the learned Assistant Public
Prosecutor is therefore granted. The High Court will issue appropriate
directions for the recording of the evidence to prove the report of the Mint
Master under Section 391 Cr. P.C. when the matter goes back to High Court and
is listed for directions. The appeal is therefore allowed. The order of
acquittal is set aside. The matter is remitted to the High Court for proceeding
further in accordance with law in the light of the abovesaid directions.
P.S.S.
Appeal allowed.
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