C. P. PANDYA v. MOTILAL LALLU — 1979 DIGILAW 81 (GUJ)

M. K. SHAH, J. ( 1 ) ON 22nd April 1971 Durgesh Desai Superintendent of Customs (Preventive) Bulsar received information that a vessel named Jai Sagar had left Dubai for the coast of India having been loaded with contraband goods and that the said vessel was likely to reach the coast of Ponsari near Bilimora creek. On receiving this information it is the case of the prosecution that a party of the customs officers went to the creek at about 9-30 p. m. on the very day. They saw the vessel approaching the coast. However on noticing movements of the people on the coast the crew on Board the vessel became suspicious and the vessel therefore receded into the sea and did not land at Ponsari. But ultimately it appears it anchored in the Mendhar creek which is at a distance of 3 to 4 miles from Bilimora. The customs officers returned as they had no vessel on hand which could go into the sea and apprehend Jai Sagar and it was therefore thought fit that the next day arrangement should be made to get a vessel to go in search of the receded vessel. On the next day i. e. on 23rd April 1971 in the meanwhile two of the members of the crew that is accused No. 2 Daji Charmar and accused No. 3 Motilal Lallu who were travelling by a train were apprehended by I. P. Mahida Superintendent of Customs (Preventive) Baroda as he found their movements suspicious and on interrogation these two men disclosed that the vessel Jai Sagar had ultimately landed at Mendbar; that as soon as the vessel landed village people had surrounded the same and looted the goods therein and the members of the crew thereupon fled away including the said accused Nos. 2 and 3. The accused were brought to Bulsar. They were further interrogated and thereafter the area near Mendhar was combed in the evening of 23rd April 1971 and during the course of three days combing operation nylon fabrics cinnamons radio sets of foreign origin etc. were found and seized from the fields in the combed area. The vessel Jai Sagar was also seized from the place where it was anchored. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . were found and seized from the fields in the combed area. The vessel Jai Sagar was also seized from the place where it was anchored. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 2 ) THE nine accused were then put up for trial before the learned Judicial Magistrate First class at Gandevi in criminal case No. 3275 of 1973 and the learned Magistrate passed an order dated 28th January 1976 recording a finding of guilty against accused Nos. 2 3 and 5 for the offence under sec. 135 of the Customs Act and sentencing them to 18 months R. I. and a fine of Rs. 1000. 000 in default six months further R. I. so far as accused No. 1 is concerned it may be noted that as he had died during the pendency of the trial the case against the said accused bad abated and accused Nos. 4 and 6 to 9 were found not guilty and acquitted by the learned Magistrate by the said order. ( 3 ) THE matter was carried further up by the convicted accused Nos. 2 3 and 5 in appeal before the learned Sessions Judge Bulsar at Navsari The learned Sessions Judge who heard the said three appeals being appeals Nos. 13 14 and 15 of 1976 came to the conclusion that a great doubt existed about the story narrated by the customs officers and that from the statements of accused Nos. 2 3 and 5 recorded under sec. 108 of the Customs Act at Exs. 29 30 and 33 one would not be surprised if the statements of accused Nos. 2 3 and 5 suffer from the same handicap and the same happened to be recorded so as to suit the case of the customs officers that the said statements were not true voluntary and genuine. In his opinion the statements by themselves and uncorroborated by any other piece of evidence are insufficient to warrant a conviction. 2 3 and 5 suffer from the same handicap and the same happened to be recorded so as to suit the case of the customs officers that the said statements were not true voluntary and genuine. In his opinion the statements by themselves and uncorroborated by any other piece of evidence are insufficient to warrant a conviction. He therefore allowed the three appeals of the respective accused set aside the order of conviction and sentence passed against them by the learned Magistrate and acquitted them of the offence under sec. 135 of the Customs Act. It is from this order of the learned Sessions Judge Mated 6th March 1976 that these six appeals arise. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 4 ) AT the outset we may mention that we are conscious of the fact that we are dealing with an acquittal appeal and we have therefore to bear in mind the guiding principles governing exercise of this courts appellate jurisdiction which principles are well settled. The appellate court while dealing with an appeal against the order of acquittal though it has full power to review at large the evidence on which the order of acquittal is founded yet in exercising its power should give proper weight and consideration to such matters as (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at his trial (iii) the right of the accused to the benefit of doubt and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by the Judge who had the advantage of seeing and marking the demeanour of the witnesses which finding certainly cannot be disturbed if two reasonable conclusions can be reached on the basis of the evidence on record (vide SAMSON EVAN KAMKAR V. STATE OF MAHARASHTRA A. I. R. 1974 S. C. 1153 and BHIM SINGH RUP SINGH V. STATE OF MAHARASHTRA A. I. R. 1974 S. C. 286. Also see NARPAL SINGH AND OTHERS V. STATE OF HARYANA A. I. R. 1977 S. C. 1066 SATBIR SINGH AND ANOTHER ETC. V. STATE OF PUNJAB A. I. R. 1977 S. C. 1294 AND K. GOPAL REDDY V. STATE OF ANDHRA PRADESH A. I. R. 1979 S. C. 367 ). ( 5 ) KEEPING this principles in the forefront let us now see if the order of acquittal passed by the learned Sessions Judge is one which requires to be disturbed as urged by Mr. Mehta the learned Advocate appearing for the customs authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 6 ) THUS these statements of the accused recorded under sec. 108 of the Act contain intrinsic evidence that they are voluntary and true. To illustrate if the statements were obtained by threat or coercion to suit the prosecution then certainly we would not have found contradictory statements by two of the accused with regard to the person who was the Tandal of the vessel. As per the statement of accused No. 1 accused No. 5 was the Tandel. When this fact was pointed out to accused No. 5 he said that that was not correct. He denied that he was the Tandel and asserted that as a matter of fact there was no Tandel as such of this vessel and all the members of the vessel were acting in co-operation with each other. This therefore shows that the statements were voluntary and were recorded as per the say of the said accused who made the statement inter alia setting out facts specially known to them and they were not the statements procured by the customs officers by offering any inducement or under any threat or coercion as was vaguely suggested by the defence at a very late stage. ( 7 ) IF the statements are voluntary truthful and trustworthy then on these statements alone an order of conviction can be based against the three accused. ( 7 ) IF the statements are voluntary truthful and trustworthy then on these statements alone an order of conviction can be based against the three accused. It is not necessary that there should be independent corroboration with regard to these statements as appears to be the impression of the learned Sessions Judge who inter alia refused to rely on the statements on the ground that there was no corroboration at all with regard to the facts stated in these statements of independent nature. ( 8 ) BUT in the instant case we do find that there is evidence on record which supplies sufficient corroboration to the material facts stated in the statements of the accused. These statements refer to the attempt of the crew first of all to land at Ponsari in Bilimora creek then a suspicion being aroused in their mind by movements of the people on the coast and the vessel receding into the sea and ultimately landing at Mendhar coast and a crowd of people surrounding the vessel and looting the goods carried by the vessel and the members of the crew fleeing away and two of them i. e. accused Nos. 2 and 3 being apprehended from train interrogated and brought to Bulsar. ( 9 ) THERE is independent evidence of the customs officers showing that information was received by D. N. Desai (ex. 25) that this vessel was expected in the Bilimora creek on 22nd April 1971. As his evidence shows a watch party was posted which had to return without intercepting the vessel because the vessel had receded suspecting movements on the coast and the evidence of D. N. Desai Mahida (ex. 73) M P. Shah (ex. 86) C. P. Jokhakar (ex. 92) shows that in pursuance of the information which was received from accused Nos. 2 and 3 who were apprehended while travelling in the train by Mahida the area near Mendhar was combed by the customs officers and that in the fields round about contraband goods worth Rs 71 0 and odd were found lying and seized by the customs authorities. Their evidence also shows that vessel Jai Sagar was also found anchored at Mendhar creek and it was also seized from that place by the customs authorities. The evidence also shows that the goods which were seized consisted of foreign made yarn clothes and cinnamons etc. Their evidence also shows that vessel Jai Sagar was also found anchored at Mendhar creek and it was also seized from that place by the customs authorities. The evidence also shows that the goods which were seized consisted of foreign made yarn clothes and cinnamons etc. and that these goods under the belief that they were contraband articles import whereof was prohibited by law were attached under a panchnama and that adjudication proceedings were held and the goods were confiscated after following the prescribed procedure. ( 10 ) IT is true that panch witness Ratanji Ex. 77 turned hostile but leaving his evidence apart there is sufficient evidence of the customs officers supplied by documentary evidence showing that these goods were found in the fields round about Mendhar and that the vessel was also found anchored at Mendhar and that they were seized by the customs authorities. ( 11 ) THERE is therefore enough corroboration if needed with regard to the contents of the statements made by the three accused which statements were recorded under sec. 108 of the Customs Ant and the learned Sessions Judge in our opinion was patently in error in holding that there was no corroboration to the statements of the accused. ( 12 ) NOW so far as the statements of the accused recorded under sec. 108 of the Customs Act are concerned it is settled law that these statements are relevant admissible and can be acted upon. They are not hit by sec. 162 of the Criminal Procedure Code as they are not the statements made to a police officer during investigation of a crime. We are fortified in the view which we take viz. that no corroboration as such is necessary with regard to a statement recorded under sec. 108 of the Customs Act by a decision of the Supreme Court in MAGHAR SINGH V. STATE OF PUNJAB A. I. R. 1975 S. C. 1320. We are fortified in the view which we take viz. that no corroboration as such is necessary with regard to a statement recorded under sec. 108 of the Customs Act by a decision of the Supreme Court in MAGHAR SINGH V. STATE OF PUNJAB A. I. R. 1975 S. C. 1320. As observed at page 1323:"if the court believes the witnesses before whom the confession is made and it is satisfied that the confession was voluntary then in such a case Conviction can be founded on such evidence alone as was done in RAO SHIV BAHADUR SINGH V. STATE OF VINDHYA PRADESH 1954 SCR 1098 = (A. I. R. 1954 S. C. 322) where their Lordships of the Supreme Court rested the conviction of the accused on the extra judicial confession made by him before two independent witnesses namely Gadkari and Perulakar. "our attention was also drawn to HIRA H. ADVANI ETC. V. STATE OF MAHARASHTRA A. I. R. 1971. S. C. 44. This was a case under the Sea Customs Act and sec. 171-A came up for interpretation. It was held that the statements made to customs officers in inquiry under sec. 171-A were admissible in evidence against maker in criminal proceedings launched against him. The following observations of the Supreme Court at page 57 in para 42 show that such statements do not stand at par with confession. The observations are in the following terms:"it was argued before the High Court that inasmuch as the statements were sought to be relied upon as a confession the court was bound to take into account not only the portions containing admissions but also the explanations which followed. The High court held that a statement under sec. 171-A did not stand at par with a confession so that it had to be taken as a whole or rejected as a whole. Even with regard to the statements portions of which are inculpatory against the maker and other portions which are not it has been held in a recent decision of this court that the inculpatory portion can be accepted if the exculpatory portion is found to be inherently improbable. . . vide NISHI KANT V. STATE OF BIHAR CRI. A. 190 OF 1966 DT. 2 AND REPORTED SO FAR IN A. I. R. 1969 SC. 422. In this case the explanations contained in the statements were considered by the courts below. . . vide NISHI KANT V. STATE OF BIHAR CRI. A. 190 OF 1966 DT. 2 AND REPORTED SO FAR IN A. I. R. 1969 SC. 422. In this case the explanations contained in the statements were considered by the courts below. "our attention was also drawn to HEM RAJ DEVILAL V. THE STATE OF AJMER A. I. R. 1954 S. C. 462. As observed in para 8 at page 464 :-"mere bald assertion by the prisoner that he was threatened tutored or that inducement was offered to him cannot he accepted as true without more. "in the instant case also except the bald statement that the accused were threatened or were coerced to make the said statements there is nothing on record to justify a conclusion that these statements were obtained by ally threat or coercion or that they were not voluntarily made. The cir cumstances under which the statements mere made appreciated in the context of the statements themselves leaves no doubt in cur mind that the statements were made voluntarily and they are true and trustworthy. ( 13 ) BUT Mr. Shelat the learned Advocate appearing for accused Nos. 3 and 5 relied on SEVANTILAL KARSONDAS V. THE STATE OF MAHARASHTRA AND ANOTHER A. I. R 1979 S. C. This was a case in which special circumstances like the accused having been seen visiting the flat from which the contraband goods were found:- that he tried to run away on seeing the customs officers searching the premises; that he was in possession of the duplicate key of the flat and that he was wearing a bandi which is a special type of bandi suitable for carrying gold slabs secretly were held not incompatible with the innocence of the accused by the Supreme Court and the Supreme Court observed that these were circumstances explainable and without more the circumstances cannot be regarded as incriminating circumstances. It is then observed by the Supreme Court at page 708 :-"so the conviction really rests on the confession attributed to the appellant. If it is bound 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 sec. If it is bound 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 sec. 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 sec. 24 above mentioned. "the Supreme Court in that case on the facts on record found that the confession was not a voluntary one and it was as a result of assault on the accused by the customs officers and the accused lead been forced into making the endorsement in his own hand writing under the confessional statement to the effect that the statement was voluntary and had been explained to him. This decision in our opinion does not help Mr. Shelat at all but on the contrary helps the prosecutionit is true the circumstances viz. that the accused were found travelling in a suspicious condition in the train that they were apprehended that on interrogation they supplied the information and that at the instant of the accused the area at Mendhar was combed and contraband goods recovered and the vessel also seized by themselves would not be sufficient to establish the guilt of the accused. But as observed by the Supreme Court if the statements made by the accused are held to be voluntary and true the same may receive some support from these circumstances. In the instant case as already observed there is ample evidence on record establishing that the statements made are voluntary and true. The circumstances therefore narrated above would lend support to the contents of the said statements. ( 14 ) BUT it was submitted by Mr. Sheth the learned Advocate appearing for accused No. 2 that the statements which were made by accused Nos. 2 and 3 were made while they were under illegal detention and that such statements cannot. therefore be relied upon. We are unable to accept this submission of Mr. Sheth. ( 14 ) BUT it was submitted by Mr. Sheth the learned Advocate appearing for accused No. 2 that the statements which were made by accused Nos. 2 and 3 were made while they were under illegal detention and that such statements cannot. therefore be relied upon. We are unable to accept this submission of Mr. Sheth. The two accused after they were apprehended from the train were detained for the purpose of interrogation. On interrogation they gave certain information which led to the seizure of the contraband goods and the vessel by which the goods had been imported into India and thereafter after following the proper procedure the customs officer recorded statements of these two accused and later of accused No 5 tender sec. 108 of the Customs Act. There is nothing illegal in the procedure followed and in recording the statement. Mr. Sheth was not able to point out any provision of law or any authority showing that the statements recorded under such circumstances cannot be acted upon. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ( 15 ) IT was ultimately argued by Mr. Sheth that there was no evidence led by the prosecution to show that these three accused were in possession of the goods or that the goods which were seized were the very goods which had been carried by vessel Jai Sagar as per the statements made by these accused. We are unable to find any force in this last submission of Mr. Sheth also. If we look chronologically to the events which happened it would be clear that the goods which were seized were no other goods but the goods which were carried by vessel Jai Sagar on which vessel three of the members of the crew were of the three accused. First of all the information was received on 22nd April 1971 by Desai to the effect that vessel Jai Sagar carrying contraband articles was about to land at Bilimora creek at the coast of Ponsari. First of all the information was received on 22nd April 1971 by Desai to the effect that vessel Jai Sagar carrying contraband articles was about to land at Bilimora creek at the coast of Ponsari. In pursuance of this information the watch party was sent to intercept the vessel but the vessel could not be intercepted as it receded into the sea on the crew members apprehending some trouble on the coast and becoming suspicious of the movements on the coast. The customs officers could not do anything further in the matter because they had to arrange for suitable vessel to go into the sea and to chase Jai Sagar and to intercept it after finding it out. They were therefore making arrangement for a vessel for that purpose. In the meanwhile the two accused were travelling by the 12-30 train on 23rd April 1971 that is on the next day of the main incident; were apprehended by Mahida interrogated and were brought to customs office at Bulsar. They were further interrogated and in pursuance of the information received from them the customs authorities carried out operations of combing the area named by the accused from which area the contraband goods worth Rs. 71 0 and odd were seized during the course of combing for three days and the vessel Jai Sagar was also seized lying anchored in the creek of Mendhar. This therefore read along with the statements of the three accused clearly establishes that the contraband goods were brought through vessel Jai Sagar to Mendhar and that on this vessel the three accused were the members of the crew. It is not alleged against the accused that they were the persons owning the goods or were in possession of the said goods. What i alleged against them is that they were members of the crew on board Jai Sagar which had brought the said goods which the accused knew or had reason to believe were liable to confiscation under sec. 111. Sec. 135 (1) (b) provides that (1) without prejudice to any action that may be taken under this Act if any person 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 sec. 111 he shall be punishable with various penalties mentioned in the said section and as provided in sec. 111 various categories of goods set out in sec. 111 in clauses (a) to (p) if brought from a place outside India shall be liable to confiscation. The case therefore squarely falls within sec. 135 (1) (b) of the Customs Act and the charge also specifically mentioned that the accused inter alia carried contraband goods of foreign origin in the said vessel and that all the accused were carrying possessing dealing or in any way concerned with the said goods which they knew or had reason to believe that they were liable to confiscation under the Customs Act and that they had thereby committed an offence under sec. 135 (1) (b) (it seems by mistake sec. 125 (2) is mentioned in the charge ). ( 16 ) IT is thus clear that the three accused are guilty of the offence under sec. 135 (1) (b) of the Customs Act and the learned Sessions Judge in our opinion was not right in reversing the order of conviction and substituting the same by an order of acquittal against the three accused. ( 17 ) LET us now deal with some of the reasons which have weighed with the learned Sessions Judge in recording the finding of not guilty against the accused. It was observed by the learned Sessions Judge that there was no other evidence barring the statements Exs. 29 30 and 33 to connect the three accused with the said offence. In our opinion the learned Sessions failed to appreciate the evidence which is on record which shows that it was in pursuance of the information received from the three accused that the contraband goods and the vessel through which they were brought were traced by the customs officers. The evidence is given by the customs officers which shows the conduct of the accused the information given by them and the action taken by the customs officers and the actual find of the contraband goods and the vessel at the spot named by the accused. This therefore is a piece of evidence which does collect the accused with the offence and it does provide corroboration to the statements made by them. ( 18 ) THE learned Sessions Judge further observed that in the written statements Exs. This therefore is a piece of evidence which does collect the accused with the offence and it does provide corroboration to the statements made by them. ( 18 ) THE learned Sessions Judge further observed that in the written statements Exs. 96 57 and 98 the accused clearly stated that they had not made any statement (the reference is to the said statements Exs. 29 30 and 33 recorded under sec. 108 of the Customs Act ). The learned Sessions Judge is obviously wrong in this observation because we do not find anywhere in the statements Exs. 96 97 and 98 that no such statements were in fact made by the accused. What the accused have stated as earlier set out in these statements is that the said statements under sec. 108 of the Act were obtained from them by threat and they gave the said statements and were compelled to sign the same out of fear because of the presence of the police. This is far from saying as is assumed by the learned Sessions Judge that the three accused clearly stated that they had not made any such statements. ( 19 ) THE learned Judge has then treated the statements as in the nature of extra judicial confession and though he held that it is not an inflexible rule that in no case can a conviction be based solely on extrajudicial confession and that an extra-judicial confession can be relied upon it must be accepted as a whole. But he then observed that it is clear there is no corroboration. The persons who kept a watch at night oh the Ponsari creek have not been examined. The evidence of the several witnesses clearly goes to show that they were not members of the party which kept a watch over the vessel. He also observed In that short time the crew according to the prosecution swam from the sea to the coast. It is difficult to understand in what context this last observation is made. The evidence of the several witnesses clearly goes to show that they were not members of the party which kept a watch over the vessel. He also observed In that short time the crew according to the prosecution swam from the sea to the coast. It is difficult to understand in what context this last observation is made. But the inference seems to be to the effect that the learned Judge takes a judicial note of the timing of the Baroda passenger which leaves Baroda at 6 a. m. and arrives at Amalsad at 11-15 or 11-20 a. m. There is nothing on record to show that the accused could not reach Amalsad after having left Mendhar in the morning by 11-15 or 11-20 a. m. There is also nothing on record to show that timings of the Baroda passenger were the same as assumed by the learned Judge in 1976 at the time when the incident happened in the year 1971. ( 20 ) THERE is also no warrant for the remarks of the learned Judge to the effect that Mahida does not tell us as to what made him lay his hands on the two accused while the two were in the train and that a great doubt exists about the story narrated by the customs officers. Everythings is strange and fishy. There is unnaturalness about the story. One would not be surprised if the statements Exs. 29 30 and 33 suffer from the same handicap. One should not be surprised if the statements happened to be recorded so as to suit the case of the customs officers. I do not believe that the three statements are true or voluntary and genuine. In our opinion these remarks are without any basis or foundation. They are mere generalisations. There is nothing in the statements which shows that it suffers from any handicap there is nothing unnatural about the story and there is nothing to warrant a conclusion that everything is strange or fishy. The learned Judge then observed Further the statements by themselves and uncorroborated by any other piece of evidence are insufficient to warrant a conviction. In view of the settled legal position we do not agree with the learned Sessions Judge in these observations of his. The learned Judge then observed Further the statements by themselves and uncorroborated by any other piece of evidence are insufficient to warrant a conviction. In view of the settled legal position we do not agree with the learned Sessions Judge in these observations of his. If the statements are found to be true voluntary and trustworthy without any corroboration by any other piece of evidence they can be acted upon. . ( 21 ) WE have in the course of the judgment clearly demonstrated that the reasons given by the learned Sessions Judge are neither cogent nor convincing and that they are slender. The result will be that the appeals will have to be allowed and the order of the learned Sessions Judge setting aside the order of conviction passed by the learned Magistrate and acquitting the accused will have to be set aside and substituted by an order of conviction against the three accused that is accused No. 2 Daji Chamar accused No. 3 Motilal Lallu and accused No. 5 Ranchhod Rama for the offence under sec. 135 (1) (b) of the Customs Act. 1962. Appeals allowed: Sentence awarded. .