Assistant Collector Of Central Excise, Calicut vs V. P. Sayed Mohammed

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1983 Supreme(SC) 21

SUPREME COURT OF INDIA
E.S. VENKATARAMIAH AND R.B. MISRA, JJ.
Assistant Collector of Central Excise, Calicut, Appellant
Versus
V.P. Sayed Mohammed, Respondent.
Criminal Appeal No. 44 of 1976,
D/- 12-1-1983.
Advocates Appeared
Mr. G. S. Narain and Miss. A. Subhashini, Advocate, for Appellant Mr. M. M. Abdul Khader, Sr. Advocate and Mr. E. M. S. Anam, Advocate, for Respondent.

Advocates:
A.SUBASHINI, E.M.S.ANAM, G.S.NARAYAN, M.M.ABDUL KHADER

Headnote:(i) Customs Act, 1962-Section 135(b)-Gold (Control) Act, 1968-Section 85(ii)-Prosecution of respondent for smuggled sold bars-Seized metal bars whether gold-prosecution producing gold-smith-Gold-smith testing the metal bars by rubbing on touch store and certifying it to be gold-No scientific tests were carried out-Whether prosecution established that seized metal was gold? (Yes)
       Held it is well known that persons who are goldsmiths by profession are able to find out whether a piece of metal is gold or not by the colour of the streak produced by rubbing is on a touch stone used by them even though their assessment of its purity may not be exact. It may not be a scientific way of proving that the metallic bars were gold bars. (Para 5)
        (ii) Customs Act, 1962-Sections 123 and 135(b)-Gold (Control) Act, 1968 - Section 85(ii)-Criminal Procedure Code 1973-Section 342-Guilt of the respondent for offences of possessing contraband gold and for seizure of smuggled gold-In his court examination under section 342 Criminal Procedure Code respondent admitting recovery of 28 gold bars with foreign markings in a packet from his trunk- Further stating that said packet was given to him by one as for giving it in his house without his knowledge that it contained gold bars-Prosecution witnesses corroborating recovery-Whether prosecution has established the guilt of the respondent? (Yes)-High Court whether correct is holding that the statement of the respondent that the gold was seized from him could not be used against him on the ground that it would result in splitting up of the statement which was on the whole exculpatory? (No)
       Held the High Court was in error in coming to the conclusion that gold had not been seized from the respondent by P. W. 1 as per Exh. P. 1 at the Trichur Railway Station. These gold bars were seized by P. W. 1 in the reasonable belief that they were smuggled goods. Under section 123 of the Customs Act, in such circumstances, the burden of proving that they were not smuggled goods would be on the respondent from whose possession they were seized. In the instant case, the respondent had not discharged the burden which lay on him. P.W. 1 has stated that the said gold bars and foreign markings on them and Exh. P. 1, the mahazar corroborated his statement. The respondent had no authorisation to keep the said gold with him. It is the evidence that the said gold bars were found packed in paper and kept in the inside folds of a blanket underneath some clothes in the trunk seized from the respondent. He had taken care to secrete them. He had brought them from Bombay which was a customs area. In the circumstances his explanation that he had no knowledge that he was in possession of or carrying smuggled gold bars cannot be believed, as rightly held by the learned Sessions Judge. The prosecution has clearly established the guilt of the respondent. The judgment of the High Court is, therefore, liable to be set aside and it is accordingly set aside. The conviction of the respondent and the sentence imposed on him by the learned District Magistrate which were affirmed on appeal by the learned Sessions Judge are restored. The appeal is accordingly allowed. (Para 5)

Judgment

VENKATARAMIAH, J. - The Assistant Collector of Central Excise, Calicut has filed this appeal after obtaining the special leave of this Court against the judgment and order dated January 5, 1973 of the High Court of Kerala in Criminal Revn. Petn. No. 426 of 1972 : (reported in 1973 Cri LJ 1551).

2. Briefly stated, the facts of the case are these : In the early hours of Aug. 9, 1969 the respondent alighted from the Kerala Express at the Trichur Railway Station with a steel trunk in his hand. C. C. Mathan, Inspector of Central Excise Special Customs, Preventive, Trichur (P. W. 1) who was on patrol duty at the Railway Station suspected that the respondent was carrying contraband goods and on coming to know from the Ticket Examiner that the respondent had arrived from Bombay he asked the respondent to hand over the steel trunk which he was carrying. When C. C. Mathan (P. W. 1) opened and searched the steel trunk, he found in it 28 gold bars with foreign markings. The respondent was arrested by C. C. Mathan (P. W. 1) and when questioned by P. W. 1, the respondent did not produce any authorisation entitling him to keep the 28 gold bars in question which were valued at Rs. 56,000/-. A mahazar (Ext. P-1) was prepared for having seized the 28 gold bars. A sum of Rs. 1,380/- which was found in the steel trunk was also seized. Later on it is stated that the 28 gold bars in question were confiscated in a proceeding under S. 111 (d) of the Customs Act, 1962 read with S. 23-A of the Foreign Exchange Regulation Act, 1947 before the Additional, Collector of Customs, Cochin. The steel trunk also was confiscated under Section 119 of the Custom Act, 1962. A penalty of Rs. 500/- was imposed on the respondent under Section 112 (b) of the Customs Act, 1962. The amount of Rupees 1,380/- which had been seized from the respondent was, however, ordered to be returned to him. Thereafter the Assistant Collector of Customs and Central Excise, Kozhikode after obtaining the required sanction under Section 137 (1) of the Customs Act and Section 97 (1) of the Gold (Control) Art, 1968 from the Additional Collector of Customs, Cochin and the Collector of Customs and Central Excise, Cochin respectively filed a complaint before the District Magistrate (Judicial), Tellicherry against the respondent for offences punishable under Section 135 (b) of the Customs Act read with Section 85 (ii) of the Gold (Control) Act, 1968. In support of the said prosecution four witnesses were examined by the complainant. C. C. Mathan, P. W. I gave evidence about the seizure of the 28 gold bars with foreign markings from the respondent at the Trichur Railway Station on August 9, 1969 under the mahazar (Exh. P-1). He also produced Exh. P-2 which contained the statement made by the respondent before the Special Customs Preventive Circle Superintendent Kozhikode in which he had admitted that 28 gold bars with foreign markings had been seized from him under a mahazar and that the said 28 gold bars had not been legally imported to India. C. C. Mathan (P.W. 1) stated that he was present before the Special Customs Preventive Circle Superintendent, Kozhikode when Exh. P-2 was recorded and that the said statement contained the signatures of the respondent and of the Superintendent who had recorded it. K. Subramonian (P. W. 2) who was working as a Ticket Collector at Trichur Railway Station stated that the 28 gold bars in question were seized on August 9, 1969 at the Trichur Railway Station under the mahazar (Exhibit P-1) which he had signed. V. M. Velayudhan (P. W. 3) who was a resident of Trichur and a goldsmith by profession stated that the 28 gold bars in question had been examined and weighed by him at the Trichur Railway Station at the request of C. C. Mathan (P. W. 1). He further stated that he tested the purity of the said 28 gold bars by rubbing them on the touchstone and found that they were gold bars of 24 carats quality. He gave a certificate (Exh. P-3) regarding the purity a

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