Judgement

WANCHOO, J.: This is an appeal on a certificate granted by the Mysore High Court. The appellant was prosecuted under S. 167 (81) of the Sea Customs Act (No. 8 of 1878), read with S. 9 of the Land Customs Act (No. XIX of 1924). The appellant lives in a village which is close to Goa. The incident out of which the present appeal has arisen took place on November 27, 1960 when Goa was not a part of India but was Portuguese territory. The Deputy Superintendent of Customs, Goa Frontier Division, Belgaum, received information that contraband goods would be found in the house of the appellant. Consequently he raided the house in the company of three panchas. The appellant was not present in the house when the raid took place, but his mother and sister-in-law were there. After necessary formalities the house was searched and a big steel trunk, cane-box and another steel trunk were taken down from the loft in the kitchen. On opening, a belt, with four pouches stitched to it, was found in the big steel trunk. Inside the pouches, four gold bars, with foreign marks and labels of Goa Customs authorities were found. Besides these, a large sum of money and three small cut pieces of gold were also found in the box. In the other two boxes also various sums of money in currency notes were found. The weight of the gold bars was 343 tolas.

2. On November 30, 1960, the appellant was arrested and interrogated by the Deputy Superintendent of Customs and Excise. The answers given by him were reduced in writing and his signature was taken on the writing after it had been read over to him. During this interrogation, the appellant admitted that the four gold bars had been given to him on November 27, 1960 in the morning by one Vithal Morajkar of Goa so that he might deliver them back to Morajkar on the motor-stand at Belgaum or near there, and he had kept them in his house. As the gold was foreign gold and as under the notification under S. 8 (1) of the Foreign Exchange Regulation Act, 1947, import of gold into India had been forbidden except with the general or special permission of the Reserve Bank of India, the appellant was prosecuted on a complaint filed by the Assistant Collector of Central Excise and Land Customs, Goa Frontier Division, Belgaum.

3. The Magistrate convicted the appellant and sentenced him to imprisonment and fine and also ordered confiscation of the four gold bars. On appeal to the Sessions Judge, the appellant was acquitted relying on the decision of the Calcutta High Court in Sitaram Agarwala v. State, 1962 (2) Cri LJ 43. Then followed an appeal by the State to the High Court. The High Court disagreed with the view taken by the Calcutta High Court in Sitaram Agarwal s case, 1962 (2) Cri LJ 43, and held that even a person like the appellant who might have no direct concern with the import of gold in any way was liable under S. 167 (81) of the Sea Customs Act. The High Court then considered the evidence and relying on the statement made by the appellant to the Deputy Superintendent of Customs and Excise and also on the other evidence produced in the case held that the appellant was guilty. In consequence, the acquittal of the appellant was set aside and the order of conviction and sentence passed by the Magistrate was restored. The appellant then applied to the High Court for a certificate to appeal to this Court, and as two questions of law of general importance arose in this case, the High Court granted the certificate. The two questions were: (i) whether the view taken by the High Court differing from the view taken by the Calcutta High Court in Sitaram Agarwal s case, 1962 (2) Cri LJ 43, with respect to the interpretation of S. 167(81) was correct, and (ii) whether the statement made by the appellant to the Deputy Superintendent of Customs and Excise was admissible in evidence in view of S. 25 of the Indian Evidence Act, (No. 1 of 1872). These are the two questions which have been argued before us on behalf of the appell