J. A. Naidu: Atmaram Vasudev Damie: M. M. Keer vs State Of Maharashtra

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1979 Supreme(SC) 226

SUPREME COURT OF INDIA
S. MURTAZA FAZAL ALI AND A.C. KOSHAL, JJ.
J. A. Naidu etc. etc., Appellants
Versus
State of Maharashtra, Respondent.
Criminal Appeals Nos. 496-498 of 1976 and 321 of 1977;
Special Leave Petn. (Criminal) No. 490 of 1979, D/- 27-3-1979.
AND
M. M. Keer and others, Petitioners
Versus
State of Maharashtra, Respondent.
Advocates appeared
Mr. U. R. Lalit, Sr. Advocate (Mr. V. N. Ganpule and Mrs. Veena Devi Khanna, Advocates with him) (in Crl. A. Nos. 496-498 of 1976) and M/s. J. D. Jain and R. N. Nath, Advocates (in Cri. App. No. 321 of 1977), for Appellants; Mr. M. K. Ramamurthi, Sr. Advocate (Mr. M. N. Shroff, Advocate with him), for Respondent in all the Appeals; Mr. Inder Sen Sawhney, Advocate, Amicus Curiae, for Petitioner in S. L. P. No. 490 of 1979.

Advocates:
INDER SEN SAWHNEY, J.D.JAIN, M.K.RAMAMURTHY, M.N.SHROFF, R.N.NATH, U.R.Lalit, V.N.GANPULE, VINA DEVI KHANNA

Headnote:
Indian Penal Code, 1860 – Sections 120-B, 161, 165-A and 218 – Prevention of Corruption Act – Section 5 – Customs Act – Sections 135, 136, 108 – Conspiracy – Smuggled Goods – Illegal Gratification – 14 accused were tried for offences under Sections 120-B, 161, 165-A and 218 of the Indian Penal Code, Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and Sections 135 and 136 of the Customs Act, the charge being sub-divided into 66 counts. – Substance of the allegation agains them was that accused Nos. 1 to 11 entered into a conspiracy with accused No. 13 who is a smuggler, and his two associates, accused Nos. 12 and 14, from the 1st to 3rd of March 1967 at Varor and Tarapur (District Thana) the common object of which was to attach 39 packages of smuggled goods out of 103 and allow the rest to escape attachment, which conspiracy was acted upon and it pursuance of which accused Nos. 1 to 11 accepted from accused No. 13 illegal gratification in the form of money amounting in all to Rs. 48,800/- in addition to some smuggled goods, as a reward for the favour shown to accused Nos. 12 to 14. – Additional Special Judge, who held the trial found the prosecution was poved against accused Nos. 1 to 13 who were convicted of various offences covered by different counts of the charge and were sentenced in consequence to imprisonment for periods ranging from six months to six years and to fines ranging from Rs. 50/- to Rs. 10,000/-. – Accused No. 14 was however acquitted of the charge in its entirety. – Held, In taking the view of the matter that it did, the High Court, for all practical purposes, presumed the accused to be guilty unless they succeeded in establishing their innocence, which was not a correct approach to the appreciation of evidence. – It was for the prosecution to prove affirmatively that the contraband articles were in the conscious possession of accused Nos. 1 to 11 and that they had receiver the currency notes in question as claimed by the prosecution, neither of these matters was a matter of assumption, although of course the same could be inferred from circumstances which, have not been shown to exist. – Court do not regard the defence as a bundle of assertions which could not possibly be true within the domain of reason. – There is nothing inherently improbable in the currency notes having been found in one or more of the packages which are said to have been lying unaccounted for in the Customs House; nor can we agree that the averment about residents of Varor having deposited the said packages in response to a warning issued to them earlier borders on the absurd even though it way not be very probable. – Court accept all the appeals, reverse the impugned judgment, set aside the conviction recorded against and the sentences imposed upon the appellants (being accused Nos. 1 to 11 and 13) and acquit them of the charge in its entirety – Appeals Allowed

Judgment

KOSHAL, J.:- By this judgment we shall dispose of Criminal Appeals Nos. 496, 497 and 498 of 1976 and No. 321 of 1977 as well as Special Leave Petition No. 490 of 1979, all of which are directed against a common judgment of the Bombay High Court date 27th July 1975.

2. The number of persons accused at the trial giving rise to the appeals and petition above-mentioned was 14. For the purpose of better appreciating the facts of the case they may be classified under three heads as shown in the following tables :-

TABLE I.

Serial No. Name of accused Description of accused

1. A. V. Damle Superintendent, Central Excise and Customs, Dahanu.

2. J. A. Naidu Inspector, Central Excise and Customs, Dahanu.

3. S. M. Kelkar Sub-Inspector, Central Excise and Customs, Dahanu

5. M. M. Keer } Sepoys, Central Excise and Customs, Dahanu.

6. M. C. Nikam, }

TABLE II.

4. A. R. Alli Sub-Inspector, Central Excise and Customs, Tarapur

7. S. B. Kurudkar }

8. D. B. Pendekar }

9. Y. S. Sawant, } Sepoys Central Excise and Customs, Tarapur.

10. J. V. Pujare }

11. B. S. Cavas }

TABLE III.

12. Y. C. Ambhire Fisherman and mason at Dhakte-Dahanu.

13. Indur T. Didlani Trader in Textiles, 27. Everest, Peddar Road, Bombay.

14. Fakira Mahamed Dealer in ready-made garments Room No. 10, 2nd Lane Kamathipura, Bombay;

This classification would now show that accused Nos. 1 to 3, 5 and 6 are officials of the Central Exicse and Customs Department stationed at Dahanu while those in Table II are officials of the same category stationed at Tarapur. Table III, on the other hand, contains the names of three non-officials hailing from Dhakte-Dahanu and Bombay.

3. The 14 accused were tried for offences under Sections 120-B, 161, 165-A and 218 of the Indian Penal Code, Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and Sections 135 and 136 of the Customs Act, the charge being sub-divided into 66 counts. The substance of the allegation agains them was that accused Nos. 1 to 11 entered into a conspiracy with accused No. 13 who is a smuggler, and his two associates, accused Nos. 12 and 14, from the 1st to 3rd of March 1967 at Varor and Tarapur (District Thana) the common object of which was to attach 39 packages of smuggled goods out of 103 and allow the rest to escape attachment, which conspiracy was acted upon and it pursuance of which accused Nos. 1 to 11 accepted from accused No. 13 illegal gratification in the form of money amounting in all to Rs. 48,800/- in addition to some smuggled goods, as a reward for the favour shown to accused Nos. 12 to 14.

The Additional Special Judge, Thana, who held the trial found the prosecution was poved against accused Nos. 1 to 13 who were convicted of various offences covered by different counts of the charge and were sentenced in consequence to imprisonment for periods ranging from six months to six years and to fines ranging from Rs. 50/- to Rs. 10,000/-. Accused No. 14 was however acquitted of the charge in its entirety.

The 13 persons convicted by the trial Judge filed six appeals against his judgment while the State also filed an appeal against the acquittal of accused No. 12 on some of the heads of charge. During the pendency of these appeals, accused No. 13 died and his appeal therefore abated except in so far as the fine imposed on him was concerned. The High Court accepted the appeal preferred by accused No. 12 and acquitted him of the charge. All the other appeals were however dismissed by it except in relation to the sentences which were reduced in regard to some counts.

The judgment of the High Court is challenged in Criminal Appeal No. 496 of 1976 by accused No. 2, in Criminal Appeal No. 497 of 1976 by accused No. 3 in criminal Appeal No. 498 of 1976 by accused No. 4, in Criminal Appeal No. 321 of 1977 by accused No.1 and is Special Leave Petition No. 490 of 1979 by accused Nos. 5 to 11.

4. The prosecution case may be stated thus. Indur Dadlani (accused No. 13) travelled from Bombay to Dubai on the 5th F

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