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1962 Supreme(Gau) 30
Manipur High Court
T. N. R. TIRUMALPAD, J.
Neithanga Hmar
Versus
Assistant Collector of Central Excise and Land Customs, Assam
Criminal Revn. Case No. 23 of 1961
Decided On : 23-04-1962
Y. Imo Singh and R.K. Manisana Singh, for Petitioners; N. Ibotombi Singh, Public Prosecutor, for Respondents.
The presumption under Sec. 178-A of the Sea Customs Act will not be available to the prosecution for prosecutions under the Foreign Exchange Regulation Act and the Land Customs Act.
Headnote:
FOREIGN EXCHANGE REGULATION ACT, 1947 - SECTION 23(1-A) - LAND CUSTOMS ACT, 1924 - SECTION 7(1) - SEA CUSTOMS ACT, 1878 - SECTION 167(8) - SMUGGLED GOLD - IMPORTATION - OFFENCES - PENALTIES - CONFISCATION - BURDEN OF PROOF - PRESUMPTION - SECTION 178-A OF THE SEA CUSTOMS ACT - APPLICABILITY - INTERPRETATION - PUNISHMENT - SECTION 3 OF THE PROBATION OF OFFENDERS ACT - APPLICABILITY.
Fact of the Case:
Petitioner No. 1, Neithanga Hmar, was searched by P. W. 1 H. K. Nag, the Preventive Officer of Central Excise and Land Customs at about 9-00 a.m. on 21-8-1959 when he arrived by bus at Kwakeithel Bazar near Imphal from Churachandpur. P. W. 1 had some information that smuggled gold was being brought by the said bus. Petitioner No. 1 who is a Subedar in the Assam Regiment was in his military uniform. When he was searched, it was found that underneath his uniform, he was wearing a waist-coat in which there were 30 pockets which had been stitched and when the said pockets were unstitched, it was found that each pocket contained a gold bar weighing 16 and odd tolas making in all 480 and odd tolas of gold. The gold bars were found hammered in order to prevent their place of origin being known, i.e., whether they were of Indian origin or foreign origin. He made a statement Ext. A-2 to the Superintendent of Land Customs (P. W. 7), stating that his cousin Zaphira Hmar, petitioner No. 2, gave the said gold bars to him along with the waist-coat on 20-8-1959 at Churachandpur asking him to carry the said gold to Imphal and promising to take back the gold from him at Imphal and that he was not the owner of the gold and did not know whether the gold was brought from Burma, or whether there was any permit from the Reserve Bank of India for bringing the seized gold into India.
Finding of the Court:
1. The gold seized in this case was smuggled gold of foreign origin and not of Indian origin. 2. The presumption under Sec. 178-A of the Sea Customs Act will not be available to the prosecution for prosecutions under the Foreign Exchange Regulation Act and the Land Customs Act. 3. The burden of proving that the gold was not smuggled gold was on the petitioners. 4. Petitioner No. 2 is guilty of the offence under section 23 (1A) of the Foreign Exchange Regulation Act and section 7 (1) (a) and (b) of the Land Customs Act. 5. Petitioner No. 1 is guilty of the offence under section 7 (1) (b) of the Land Customs Act.
Issues: 1. Whether the gold seized in this case was smuggled gold or not? 2. Whether the presumption under Sec. 178-A of the Sea Customs Act will be available to the prosecution for prosecutions under the Foreign Exchange Regulation Act and the Land Customs Act? 3. On whom lies the burden of proving that the gold was not smuggled gold? 4. Whether the petitioners are guilty of the offences charged against them under the Foreign Exchange Regulation Act and the Land Customs Act?
Ratio Decidendi: 1. The clandestine manner in which the gold was being carried by the first petitioner underneath his military jacket in a special waist-coat made for the purpose with pockets inside which the gold bars were stitched, was sufficient to make even an ordinary man, let alone a Customs Officer, entertain the reasonable belief that the gold has been smuggled from the nearby foreign territory. 2. Section 178-A of the Sea Customs Act will not be available to the prosecution for prosecutions under the Foreign Exchange Regulation Act and the Land Customs Act. 3. The burden of proving that the gold was not smuggled gold was on the petitioners. 4. Petitioner No. 2 is guilty of the offence under section 23 (1A) of the Foreign Exchange Regulation Act and section 7 (1) (a) and (b) of the Land Customs Act. 5. Petitioner No. 1 is guilty of the offence under section 7 (1) (b) of the Land Customs Act.
Final Decision: The conviction and sentence of petitioner No. 1 Neithanga Hmar under section 23 (1A) (a) of the Foreign Exchange Regulation Act, 1947 are set aside and his conviction under section 7 of the Land Customs Act is confirmed and he is released after admonition, under section 3 of the Probation of Offenders Act. The convictions and sentences of petitioner No. 2 Zaphira Hmar are confirmed but in modification of the sentence imposed by the lower Courts, he is sentenced to six months R. 1. under Sec. 23(1-A) (a) of the Foreign Exchange Regulation Act and to one months R. 1. under section 7 of the Land Customs Act, the sentences to run concurrently.
2. On 22-8-1959, petitioner No. 2 appeared in the Customs Office and gave the statement Ext. A-20 in which he admitted that the said gold belonged to him and that he had handed it over to petitioner No. 1 stitched inside the waist-coat to be carried to Imphal and that petitioner No. 1 himself did not know what the waist-coat contained. He said that it belonged to his father before the latters death in 1937 and that subsequently, his brother owned the gold and that at the time of his brothers death in 1947, it was handed over to him and that he had kept the same with him until then and sent it to Imphal as he wanted to sell the gold. Petitioner No. 2, was then arrested and released on bail.
3. Thereafter, notices were issued to the petitioners under Sec. 167(8) of the Sea Customs Act read with Sec. 23(A) of the Foreign Exchange Regulation Act and the gold was confiscated and penalty of Rs. 5,000/- and Rs. 25,000/-respectively were imposed on petitioners 1 and 2 by the order Ext. B/3 dated 2-11-1959 of the Collector of Central Excise. In the meantime, 7 samples were taken from the bars and sent for chemical analysis and assay and the report Ext. A/21 supported by the certificates - Ext. A/10 to Ext. A/16 was received, from which it was found that the fineness of the gold in case of all the seven samples was higher than in the case of gold produced in India. The maximum fineness of gold produced in India was 997.0 per mille, whereas in the seven samples two were found to be 1 mille above the said fineness, while remaining 5 varied from .4 per mille to 1.9 per mille of higher fineness. The Bullion Registrar, gave the report - Ext. A/8 on this, stating that it can be maintained that the gold was not of Indian origin, but he added that as the fineness of two of the samples were merely . 1 per mille above the fineness limit of gold which can be produced in India, he was of opinion that the charge of importing the gold cannot be upheld on the basis of either assay or analysis.
4. On 27-8-1959, the Collector of Land Customs, Shillong, authorised the Assistant Collector of Land Customs, Silchar by Ex. A/17, to institute Criminal Case against the two petitioners under Sec. 167(81) of the Sea Customs Act, Sec. 23 of the Foreign Exchange Regulation Act and Sec. 7(1) of the Land Customs Act. Then, the complaint was filed before the Additional District Magistrate, Manipur, on 12-1-1960 under those sections.
5. The defence of the petitioners was the same as in the statements Ext. A/2 and Ext. A/20 already referred to by me. The A. D. M. did not accept the defence and sentenced both
