Judgment.- Criminal Appeal No. 394 of 1976 was originally filed as Criminal Appeal No. 30 of 1974 on the file of the Principal Sessions Judge, Madras, and then transferred to this Court to be tried along with Criminal Appeal No. 925 of 1974, and renumbered as C.A. No. 394 of 1976. It has been filed by the accused in C.C. No. 11360 of 1973 on the file of the Chief Metropolitan Magistrate, Madras, against the judgment of the learned Magistrate, dated 3rd June, 1974, whereby he was convicted under section 135 (b)(i) of the Customs Act read with section 8(1) of the Foreign Exchange Regulation Act and also under section 85(ii) of the Cold Control Act and sentenced for each of the said offences to suffer imprisonment till the rising of the Court and to pay a fine of Rs. 1,500 in default to undergo rigorous imprisonment for six months and directing the default sentences to run concurrently. 2. Criminal Appeal No. 925 of 1974 is preferred by the Assistant Collector of Customs, the complainant in C.C. No. 11360 of 1973 mentioned above, seeking enhancement of the sentence imposed on the accused by the learned Chief Metropolitan Magistrate. 3. The crux of the indictment against the accused was that on 1st January, 1971 at the junction of Wall Tax Road and N.S.C. Bose Road, Madras, when the Preventive Officers of the Customs Department, Madras, intercepted him when he was coming with a gunny bag, and examined the contents of the bag, it was found to contain 100 bars of gold foreign origin, and that he was in possession of the same without any valid permit, licence or other documents showing that his possession of the same was legal. 4. The prosecution examined P.Ws. 1 to 3 and marked Exs.P. 1 to P. 13 and M.Os. 1 to 4 The defence marked Exs. D-1, D-1 (a), D-1(b) and D-2 to D-4. 5. The complainant, the Assistant Collector of Customs, filed a complaint dated 15th September, 1973, before the Chief Metropolitan Magistrate against the accused alleging as follows: On 1st January, 1971, acting on information, the officers of the Rummaging Division of the Madras Customs, intercepted the accused on the Wall Tax Road, near the junction of Wall Tax Road and N.S.C. Bose Road, while he was going with a jute gunny hand-bag. The said gunny bag was examined in the presence of two witnesses and it was found to contain two long cloth pouches, which in turn were found to contain 50 bags of gold in each, bearing foreign markings. Each of these 100 bars was weighing ten tolas. The person of the accused was also searched and certain documents (as listed in the mahazar) and Indian currency of Rs. 685 were recovered. Since the accused was not in possession of any proof to indicate the licit origin of the gold bars, all of them were seized on the reasonable belief that the gold bars were smuggled and that the Indian currency might be the sale proceeds of smuggled gold. Then the residence of the accused at No. 23, Audiappa Naicken Street, Madras-1, was also searched, but nothing incriminating was recovered from there. In the statement given by the accused before the Customs Officer on 1st January, 1971, he inter alia said that the bag containing gold bars was given to him by one Ramesh near Guindy Station at about 12 O’clock as per previous arrangement, that the said Ramesh promised to give Rs. 500 for the job, for which he agreed, that he was intercepted and caught with the bag by the Customs Officers at Wall Tax Road while proceeding to his house by walk and that he did not know the address of Ramesh. The accused admitted that he knew that it was an offence to purchase or sell or keep foreign gold, but stated that the amount was his savings. A show cause notice under the Customs Act and Gold Control Act was issued and after receiving a reply from the accused and after hearing him personally, the Additional Collector of Customs passed an adjudication order dated 25th April, 1973, confiscated the seized gold bars under section 111(d) of the Customs Act, 1962, read with sections 8(1) and 23-A of the Foreign Exchange Regulation Act, 1947 and also imposed a penalty of Rs. 5,000 of the accused. As per the complaint, the gold bars seized from the accused have been illicitly imported into India without a valid permit from the Reserve Bank of India in contravention of the Government of India notification and thus he had committed an offence under section 135 of the Customs Act and also an offence under section 8 of the Gold Control Act. As per the complaint, the market value of the gold bars seized is estimated at Rs. 2,20,374. 6. Of the witnesses examined, P.W. 1 is the Preventive Officer attached to the Customs House, Madras. He speaks to the facts relating the arrest of the accused with the gunny bag M.O. 1 in the presence of two independent witnesses viz., P.W. 2 and one Sundaramurthy, about the examination of M.O. 1 and the recovery of 100 gold bars of foreign origin (M.O. 4 series) with marks “Swiss Bank Corporation”, each weighing ten tolas, contained in two cloth pouches (M.Os. 2 and 3) and about the accused’s possession of Indian currency to the value of Rs. 685. According to P.W. 1 the market value of the gold seized was Rs. 2,20,374 as on that date. He also states that the accused was not in possession of any permit or licence or documents entitling him to have legal possession of M.O. 4 series and that he entertained a reasonable belief that M.O. 4 series were smuggled and seized then? under mahazar Ex. P. 1 attested by P.W. 2 and another. Ex. P. 2 is the search list under which the cash of Rs. 685 was seized. P.W. 2 corroborates the evidence of P.W. 1 in all material particulars. 7. P.W. 3 is the Senior Grade Preventive Officer of the Customs House and he states that on production of the accused along with the properties M.Os. 1 to 4, he examined the accused who gave a voluntary statement Ex. P. 3 in his own hand in Hindi (the true English translation Ex. P. 3 being Ex. P. 4) and that M.O. 4 series were sent for test to the Chemical Examiner who gave his report Ex.P. 5 certifying that the net weight of the 100 gold bars was 11,661.5 grams and that the percentage of the purity of gold was 99.8. It is the further evidence that subsequently two show cause notices under Exs.P.6 and P.7 were issued to the accused, one under the Customs Act and the other under the Gold Control Act, to which he sent his replies under Ex.P.8 dated 31st July, 1971 and Ex.P.9 dated 16th November, 1972. Orders of adjudication were passed under both the Acts, which are marked as Exs.P.10 and P.11. Under Ex. Orders of adjudication were passed under both the Acts, which are marked as Exs.P.10 and P.11. Under Ex. P. 10, M.O. 4 series were ordered to be confiscated to the State and a personal penalty of Rs. 5,000 was imposed on the accused. Under Ex.P. 11, no penalty was imposed. Exs. P. 12and P.13 are the orders of sanction for launching the prosecution under both the Acts against the accused, passed by the Collector of Customs. 8. When questioned under section 342, Criminal Procedure Code, the accused stated that it is not true to say that the customs officials seized M.O. 4 series from his possession, but only the said sum of Rs. 685 was seized, that his signature was obtained in a statement Ex.P. 3 under force and that he was kept in the Customs House in custody for the whole of the night for obtaining that statement and that a case was foisted against him on suspicion. He would add that he was arrested while he was coining in a taxi from Guindy. 9. The learned Magistrate, after having accepted the oral testimony of P.Ws. 1 to 3 and held that the statement Ex.P.3 given by the accused was voluntary, found thus: “The possession has proved that the accused was in possession of the gold bars M.O. 4 series which are prohibited items of import and dutiable goods, that he was knowingly concerned in keeping, concealing,transporting and dealing with such gold bars which he knew or had reason to believe, were liable for confiscation, and that the gold bars of foreign origin have been illicitly imported into India without a valid permit from the Reserve Bank of India”. Accordingly, the learned Magistrate passed the convictions and sentences as mentioned above. 10. Mr. Rangarajjula, learned Counsel appearing for the accused, has raised the following contentions in C.A. No. 394 of 1976: (1) The evidence of P.W. 1 is prevaricating and contradicting that of P.W. 2 regarding the recovery of the material objects and the attestation thereof by the witnesses and therefore the evidence of both the witnesses in respect of the actual seizure of M.O. 4 series ought to have been rejected. (2) The lower Court has failed to see that P.W. 1 acted under the instructions of his superior officers who later on came to the scene of occurrence and then only drew up the mahazar, which fact has been admitted by P.W. 1, in the inquiry before the Collector and in Exs.D-2 and D-4, portions of the deposition of P.W. 1 given before the Additional Collector of Customs during the adjudication proceedings and denied by him before the trial Court. (3) The lower Court failed to see that the alleged confession Ex.P.3 is manifestly written on two separate occasions, the inculpatory statement having been recorded on the latter occasion. 11. Now, coming to the first contention, Mr. Rangarajjula, learned Counsel for the accused, referring to the evidence of P.W. 1 who had deposited that he intercepted the accused along with his colleagues who were present with him, and also two independent witnesses, viz., P.W. 2 (Jayaraman) and one Sundaramurthy, and the evidence of P.W. 2, who has stated in the chief examination that at about 3 p.m. on that day he noticed a crowd near his shop and that he went there and saw a gunny bag on a table, would urge that the abovesaid variation in the evidence of these two witnesses would go to the extent of falsifying the case of the prosecution that P.W. 2 was present at the time of the interception of the accused. Ex.P.1 also, as submitted by the learned Counsel, reads as though the attesting witnesses viz., P.W. 2 and Sundaramurthi, were present with P.W. 1 even from the beginning of the interception of the accused and when he was being taken to the premises at Door No. 221, Wall Tax Road, for the search of the bag carried by the accused and his person. Though the evidence of P.W. 2 is not corroborative of the evidence of P.W. 1 and the averments contained in Ex.P.1 the fact remains that P.W. 2 was present at the time when M.O. 1 was examined and the accused was searched. Though the evidence of P.W. 2 is not corroborative of the evidence of P.W. 1 and the averments contained in Ex.P.1 the fact remains that P.W. 2 was present at the time when M.O. 1 was examined and the accused was searched. In the cross-examination of P.W. 1, it is elicited that at the time of the interception of the accused, no mahazar witness was present with P.W. 1 then and that a crowd gathered at the time of the interception of the accused at 2-30 p.m. P.W. 1 would further state that the two witnesses were present in the crowd when he intercepted the accused and they were present at the time of the search. Probably P.W. 1 would have bona fide thought that these witnesses would have been present in the crowd when he intercepted the accused, because there was no time-lag between the period of interception and the examination of M.O. 1 and the person of the accused in the nearby premises. The accused himself would admit in his statement recorded under section 343 that it was true that the cash amount of Rs. 685/- was recovered from him. According to him, he was taken from his house and implicated in this case. This explanation given in Court cannot be accepted in view of the following statement made by the accused himself in Ex.P.8, i.e., the reply to the show-cause notices: “It was on 1st January, 1971 at about 3 p.m., one Customs Officer who was driving a scooter stopped my taxi in which I was travelling, on Wall Tax Road, opposite to the police traffic signal (near Elephant Gate Police Station). By that time the taxi came to a halt, more customs officials surrounded the taxi and searched me and the taxi”. He would also admit that he was taken to Door No. 220/221, Wall Tax Road, and that a little later P.W. 2 and Sundaramurthi were brought. From the above recital in Ex. P.8 it is clear that the accused is giving a prevaricating explanation regarding the place at which and the manner in which he was taken to the customs officials. From the above recital in Ex. P.8 it is clear that the accused is giving a prevaricating explanation regarding the place at which and the manner in which he was taken to the customs officials. The earlier explanation which I have referred to from Ex.P.8 supports the evidence of P.W. 1 that the accused was intercepted in Wall Tax Road that he was taken to the premises Door No. 220/221, and that P.W. 2 and Sundaramurthi were present along with the customs officials then. It would be pertinent to note here that in Ex.P.4, which is the English translation of Ex.P.3 the accused would admit the case of the prosecution as regards his arrest, by stating thus: “I took the bag and on another taxi came near Police Station at Wall Tax Road and got down. I took the bag and I was going to my house by walk. Then some Customs officers in mufti standing there stopped me and took me at the ‘premises No. 220/221, Wall Tax Road and searched the bag which was brought by me in the presence of two witnesses.” From the above discussion it would be clear that the interception and examination of M.O. 1 and the person of the accused were all in quick succession and as such the omission of P.W. 2 to mention that he was present at the the time of the said interception by P.W. 1 is not a material variation detrimental to the prosecution case. The material portion of the case is about the examination of M.O. 1 which contained M.O. 4 series kept in the two cloth pouches, (M.Os. 2 and 3) and the recovery of the amount of Rs. 685/- from the person of the accused when he was searched at Door No. 200/221, Wall Tax Road. This part of the case is amply spoken to by P.Ws. 1 and 2 supported by documentary evidence. Hence, the variation pointed out by the learned Counsel is too insignificant to merit any consideration. 12. The second contention is that the lower Court has failed to see that P.W. 1 acted under the instructions of superior officers who later on came to the scene and then drew up the mahazar Ex. P.1. Hence, the variation pointed out by the learned Counsel is too insignificant to merit any consideration. 12. The second contention is that the lower Court has failed to see that P.W. 1 acted under the instructions of superior officers who later on came to the scene and then drew up the mahazar Ex. P.1. P.W. 1 would state that on information he was keeping watch at the junction of Wall Tax Road and N.S.C. Bose Road and on seeing the accused coming with a gunny bag, he intercepted him. He states in the cross-examination that he went to the spot along with his colleagues and that they were all present at the time when the mahazars were prepared, but one officer by name Mr. Chary, who wrote the mahazar, and another officer Somappa were not present at the time of the interception. He would further state that within about 5 or 10 minutes after the interception he telephoned to Mr. Chary and Mr. Somappa and that they came there. He denies the suggestion that he phoned to the Assistant Collector informing him that the accused came in a taxi and had detained him and nothing was found from him. When he was confronted with Exs.D.2 and D.4, wherein he has admitted that he rang up to the Assistant Collector and the Inspector who came there, he would say that he does not remember whether he said so before the Additional Collector under these two exhibits. The inquiry before the Assistant Collector was on 4th September,1972, i.e. 1 year 8 months after the interception. Therefore it is natural that under stress of cross-examination the witness would have admitted that he rang up to the Assistant Collector and the Inspector at the time when he was examined before the Additional Collector of Customs. When an overall picture of the case is taken, I do not think that P.W. 10 is making any embellishment in his evidence purposefully for any ulterior purpose. The evidence of P.W. 1 stating that the Assistant Collector and others were present even at the time of the interception will not advance the prosecution case any further as they are not witnesses in this case. Therefore, the second contention also has no legs to stand. 13. The evidence of P.W. 1 stating that the Assistant Collector and others were present even at the time of the interception will not advance the prosecution case any further as they are not witnesses in this case. Therefore, the second contention also has no legs to stand. 13. Thirdly the learned Counsel would strenuously urge that the confession Ex.P.3 was recorded on two separate occasions and as the accused had confessed that he was not aware of what the bag M.O. 1 contained at the time when he carried it at the instance of one Ramesh, another portion was recorded in the nature of an inculpatory statement that the accused carried the bag knowing that the bag contained the gold bars. The original of the statement is in Hindi-vide Ex.P.3, and the same consists of two sheets of paper. On the bottom of the second page of the first sheet of Ex.P.3, Anandan (P.W. 3) has signed stating that the statement was recorded before him. The accused also has signed in Hindi. In the other sheet of paper also the accused has signed in Hindi and P.W. 3 has also signed below the words “before me”. Both these statements are taken on 1st January, 1971 itself. P.W. 3 would state that he examined the accused who gave a voluntary statement Ex.P.3 written in his own hand in Hindi. He has denied the suggestion that the accused was forced to give Ex.P.3 and that pages 3 and 4 viz., the second sheet of Ex.P.3, were written only on the next day and that he dictated and forced the accused to write the statement Ex.P.3 and sign thereon. The accused has retracted the confession before the Court After going through the evidence of P.W. 3, in the circumstances appearing in this case, I feel that the above suggestion made to this witness has no basis. The argument of the learned Counsel is that as the first portion of the confession was exculpatory in nature, the latter portion was recorded incriminating the accused with the offence, and therefore the entire confession must be rejected. The argument of the learned Counsel is that as the first portion of the confession was exculpatory in nature, the latter portion was recorded incriminating the accused with the offence, and therefore the entire confession must be rejected. In my view, as I have indicated above, Ex.P.3 should have been written on one and the same date and at the same time and the entire statement was given quite voluntarily and, in the second portion of the confession the accused has only explained the circumstances under which he carried M.O. 1 containing M.O. 4 series. It is to be noted that in Nishi Kant Jha v. State of Bihar1, the Supreme Court having regard to the circumstances of the case, held that an inculpatory portion of a statement can be accepted if the exculpatory statement is, found to be inherently improbable. Though at one portion the accused would state that he was not aware whether the bag M.O.I contained any gold and that he came to know that it contained gold only after it was opened by the customs officials and he had no connection with gold bars, in the same breath in the latter portion he would state that he knows Ramesh for the past one year and that it was the first time that he had done gold business with Ramesh. This is a case where a huge quantity of gold i.e. 100 bars weighing 11661.5 grams have been seized. It is beyond one’s comprehension that P.W. 1 could have foisted the case on this accused by planting the seizure of 100 gold bars. There is yet another significant factor which would inherently improbabilise his statement pleading ignorance of what the bag contained. The accused would state that he does not know the address of the said Ramesh, but would give only some identifying features. If really the address of Ramesh was not known to him, would Ramesh part with so much quantity of gold with the accused without himself accompanying or following him? This shows that the accused purposely wanted to make a statement at one stage and has thereafter come forward with the inculpatory statement. But, even in the first portion of the statement, the accused has at the penultimate sentence stated as follows: “This is the first time I have committed this offence.” Therefore, when the entire confession Ex. This shows that the accused purposely wanted to make a statement at one stage and has thereafter come forward with the inculpatory statement. But, even in the first portion of the statement, the accused has at the penultimate sentence stated as follows: “This is the first time I have committed this offence.” Therefore, when the entire confession Ex. 3 is scrutinised bearing in mind the principle laid down by the Supreme Court in Nishi Kant Jha v. State of Bihar.1 I have to hold that this inculpatory statement can be accepted as the exculpatory one is inherently improbable. 14. Therefore, the totality of the evidence available in this case is that of P.Ws. 1 and 2, about (1) the seizure of the material objects from the possession of the accused and (2) the retracted confession of the accused. It is well settled that a retracted confession can be accepted and acted upon provided there is general corroboration: vide Subramania Gounder v. State of Madras.1 In the present case, the recovery of 100 gold bars is itself corroborative piece of evidence corroborating the statement given by the accused. The accused himself would admit that he was searched and the amount of Rs.685/- was recovered from his person. In Ex.P.8 he has admitted the place of arrest and the fact that he was travelling in a taxi. In other respects also the evidence of P.Ws. 1 and 2 amply corroborates Ex.P.3. Hence Ex.P.3. can be safely acted upon in the present case. Even if, for the sake of argument, we eschew Ex. P.3, the evidence of P.Ws. 1 and 2 is very clinching, reliable and worthy of acceptance. Thus, the prosecution has clearly made out the case that the accused was in possession of these gold bars in his possession and has Committed the offence as charged. Hence, I confirm the convictions passed by the trial Court against him. 15. Coming to the sentences imposed on the accused, the State has preferred C.A.No. 925 of 1974 seeking enhancement of the sentences on the ground that the learned Magistrate has erroneously sentenced the accused far below the sentence prescribed under the Act, and as opposed to the decision of the Supreme Court in Balakrishna Chhaganlal Soni v. State of East Bengal2. Coming to the sentences imposed on the accused, the State has preferred C.A.No. 925 of 1974 seeking enhancement of the sentences on the ground that the learned Magistrate has erroneously sentenced the accused far below the sentence prescribed under the Act, and as opposed to the decision of the Supreme Court in Balakrishna Chhaganlal Soni v. State of East Bengal2. In the said decision, the Supreme Court has made the following observations: “The new horizons in penal treatment with hopeful hues of correction and rehabilitation are statutorily embodied in India in some special enactments; but crimes professionally committed by deceptively respectable members of the community by inflicting severe trauma on the health and wealth of the nation and the numbers of this neocriminal tribe are rapidly accelerating-form a deterrent exemption to humane softness in sentencing. The penal strategy must be informed by special circumstances individual factors and the character of the crime. India has been facing an economic crisis and gold smuggling has had a disastrous impact on the State’s objects to stabilise the country’s economy. Smugglers, hoarders adulterators and others of their like have been busy in their under-world because the legal hardware has not been able to halt the invisible economic aggressor inside. The ineffectiveness of prosecutions in arresting the wave of white collar crime must disturb the Judge’s conscience. While we agree that penal treatment should be tailored to the individual, in the extreme category of professional economic offenders, incarceration is peculiarly potent. When all is said and done, the offences for which the appellant has been convicted are typical of respectable racketeers who tempted by the heavy pay-off, face the perils of the law and hope that they could smuggle on a large scale and even if struck by the Court they could get away with a light blow”. Counsel for the appellant-State would, therefore, submit that the sentences awarded by the Court below are inadequate and are not commensurate with the gravity of the offences committed. The trial Magistrate, in para. 9 of his judgment, has given the following reasons for awarding the lesser sentences of imprisonment till the rising of the Court. “The accused is aged about 30 years. He is a first offender. It is clear from the voluntary statement Ex.P.3 given by him, that he must have carried the goods for wages. The trial Magistrate, in para. 9 of his judgment, has given the following reasons for awarding the lesser sentences of imprisonment till the rising of the Court. “The accused is aged about 30 years. He is a first offender. It is clear from the voluntary statement Ex.P.3 given by him, that he must have carried the goods for wages. Having regard to the nature of the offence and the circumstances under which it was committed, I sentence that accused to imprisonment till the rising of the Court and to pay a fine of Rs. 1,500/-(one thousand five hundred) in default to suffer rigorous imprisonment for six months for the offence under section 135 (b)(i) of the Customs Act and also to imprisonment till the rising of the Court and to pay a fine of Rs. 1,500/- (one thousand five hundred) in default to suffer rigorous imprisonment for six months for the offence under section 85(ii) of the Gold Control Act. (In all he has to pay Rs. 3,000/-). The default sentences should run concurrently”. I am not able to understand what the learned Magistrate means by the words “nature of the offences and the circumstances under which it was committed.” In the present case, the nature of the offence is undeniably a very serious one. The total quantity of gold is 100 bars, the market value of which is Rs. 2,20,374/-. The gold seized bears foreign markings “Swiss Bank Corporation”. I had the occasion to examine the meaning of the words “special circumstances” appearing in the penal provisions of the Gold Control Act for awarding sentences less than the minimum prescribed under the Act, in Assistant Collector of Central Excise, Erode v. Achat Singh1. In the said decision I have held that the circumstances must be special in the sense that they should be different from the normal, that is to say, the special circumstances should be of such nature which would have relation to the offence and not to the offender. Therefore, in my view, the reasons given by the learned Magistrate to award imprisonment till the rising of the Court with fine are not convincing or acceptable, and the sentences imposed by the Court below are grossly inadequate. Therefore, in my view, the reasons given by the learned Magistrate to award imprisonment till the rising of the Court with fine are not convincing or acceptable, and the sentences imposed by the Court below are grossly inadequate. In a case of this nature, which is a very serious crime committed against the welfare of the State, the offender deserves no sympathetic consideration at the hands of the Court. This is the reason why the Parliament, having regard to the nature of these socio-economic offences, has thought it fit in its wisdom to prescribe a minimum sentence of six months’ imprisonment and maximum sentence of three years’ imprisonment and also fine, in the absence of any circumstances requiring the imposition of lesser sentence for the offence under the Gold Control Act. In Assistant Collector of Central Excise Erode, v. Achal Singh,1 and Union of India v. V.P. Selvarajan2 This Court has pointed out that the term “special circumstances of the case” is wider than the term “special reason” and that such circumstances also must be special in the sense that they should be different from the normal and that such circumstances must relate to the offence but not to the offender. Therefore, having regard to the gravity of the offences, I feel that the accused should suffer rigorous imprisonment for six months under the first charge under section 135(b)(i) of the Customs Act and also for the minimum period of six months contemplated under section 85(ii) of the Gold Control Act under the second charge. Accordingly, I sentence the accused to suffer rigorous imprisonment for six months on each of the two counts, while retaining the sentences of fine with the default sentences imposed by the Court below. The substantive sentences of imprisonment imposed on him shall run concurrently. 16. One other illegality committed by the learned Magistrate is that he has directed the default sentences to run concurrently. This directions is quite illegal. Hence I set aside that direction given by the Magistrate and order that in case of default in the payment of the fines imposed, the accused shall suffer the default sentences under both the charges consecutively. 17. In the result, C.A. No. 394 of 1976 is dismissed and C.A. No. 925 of 1974 is allowed by enhancing the sentences as mentioned above.