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1968 (12) TMI 101 - High Court Of Bombay

1968 (12) TMI 101 - High Court Of Bombay - TMI - CRIMINAL APPEAL 573 of 1967 - Dated:- 5-12-1968 - J.R.Vimadalal And N.D.Kamat, JJ. JUDGEMENT ( 1. ) This is an appeal filed by two accused persons who have been convicted by the Additional Sessions Judge, Thana, of offences relating to the illegal importation and possession of 6920 Tolas of gold, under Section 135 of the Customs Act 1962 as well as under Section 23 of the Foreign Exchange Regulation Act, 1947. It may be mentioned that the accused .....

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erintendent under him, and the said Jokhi, accompanied by Wagh and two inspectors named Jadhav and Surti and a constable of that department, left Vadala at about 10 p. m. and reached Bassein at about 1-30 a. m. , that they stopped their car near railway crossing along the Bassein- Vajreshwari Road, and stopped facing Vaireshwari side, after putting off the head-lights, somewhere near the wicket-gate of the level-crossing about 4 or 4 and half furlongs away from Bassein Station, that at about 2 a .....

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, therefore, intercepted the car by placing their own car across the road, and that all the persons from the raiding party then, got down and went up to that car. The prosecution story is that, apart from the driver who was at the wheel of that car, accused Nos. 1 and 2 were sitting on the rear side, that Wagh and Jokhi questioned them as to why they had come there,' and in the beginning they did not give any reply, but later on accused No. 2 stated that there was gold in the dicky of the ca .....

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ndles and make a panchnama in a lonely place like the one in which they were, and they, therefore, decided that they should go to their office in Bombay with the panchas where the property in question should be opened and taken charge of under a panchnama. Inspector Surti, Jadhav and Assistant Collector Jokhi sat in the car in which the accused were travelling, and the rest of the raiding party proceeded in their own car and the two cars reached Churchgate at about 9 a. m. The said bundles were .....

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ter at about 4 p. m. he started recording the statement of accused No. 2 which he concluded at about 5 p. m. He then proceeded to record the statement of accused No. 1 and finished recording the same at about 6 p. m. Superintendent Robb then placed accused Nos. 1 and 2 under arrest and sent them to the Azad Maidan Police lock-up, and they were put up before the Chief Presidency Magistrate the following morning viz. on the 23rd of March 1965. The Chief Presidency Magistrate having directed that t .....

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toms Act, 1962, and to one year's rigorous imprisonment for the offence under Section 23 of the Foreign Exchange Regulation Act, 1947. It is from the said convictions and sentences that both the accused have filed the present appeal. ( 3. ) The conviction of the accused persons is challenged by Mr. Jethmalani on three grounds: (1) that the accused persons not having been taken to a Magistrate till the 23rd of March 1965 in violation of the provisions of Section 104 (2) of the Customs Act, 19 .....

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themselves to show the same, as well as extrinsic evidence to prove their falsity; and (3) that the extra-judicial confessions which were recorded required corroboration, and on the only point in dispute in the present case, viz. , the question as to whether the possession of gold by accused Nos. 1 and 2 was conscious, there was no corroboration in the other evidence led in the case. I will now proceed to deal with each of these contentions of Mr. Jethmalani. ( 4. ) As far as the first contenti .....

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p before a Magistrate, but that may have been unnecessary in view of the fact that such a maximum period is now laid down by the Constitution itself in Article 22 (2) thereof. It may be mentioned that the accused persons had hi fact been put up before the Chief Presidency Magistrate within 24 hours of their arrest. Mr. Jethmalani has, however, contended that in so far as the accused persons were not free agents right from the time when the police contacted them at 2 a. m. on the night between th .....

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her person making the same shall actually touch or confine the body of the person to be arrested. , unless there be a submission to custody by word or action. It is the contention of Mr. Jethmalani that the facts of the present case show, at any rate, a submission to the custody of the excise officer by the accused persons by action and they must, therefore, be deemed to have been under arrest ever eince the time when they were first apprehended at 2 a. m. somewhere near Bassein. In support of t .....

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whither he chose". It is true that the learned Judges of the Allahabad High Court have excluded the retracted confession before them on the ground that a confession obtained from an accused person who, though not actually arrested, had, "to all intents and purposes. . . . . . been in their custody" for an "unexplained period of twelve days" could not be said to be a voluntary one, but, they have not in terms held that the accused persons before them must be deemed to hav .....

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ns arrested must be immediately taken before a committing officer, and that the confessions obtained from them were therefore not voluntary. It may be convenient at this stage to set out the precise position in regard to what happened in the present case after the accused persons were apprehended at 2 a. m. somewhere near Bassein. When it was decided that the panchnama should be made in Bombay, and not at the lonely place at which the accused persons had been apprehended, the police party, the p .....

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ade was as large a quantity as 6920 Tolas contained in four gunny bags which, in their turn, contained seven jackets with innumerable small pockets therein, with different markings on the gold which had all to be noted. After the panchanama was concluded at 2 p. m. , the investigation was handed over to Senior Superintendent Robb, and taking over charge of the investigation and the gold would itself take some time. Superintendent Robb then recorded the statement of the driver of the car Bapu. Af .....

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n accordance with the provisions of Section 104 (1) of that Act. It was then too late in the day to put them up before a Magistrate, and the accused persons were therefore put up before the Chief Presidency Magistrate the next day as stated in the evidence of Superintendent Robb. In view of this sequence of events, it could not possibly be said that there was "unnecessary delay" in putting up the accused persons before a Magistrate within the terms of Section 104 (2) of the Customs Act .....

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rmally taking a person in police custody, but a person may be in the custody of the police in other ways. What amounts to arrest is laid down by the legislature in express terms in Section 46 of the Code of Criminal Procedure, whereas the words "in custody" which are to be found in certain sections of the Evidence Act only denote surveillance or restriction on the movements of the person concerned, which may be complete as, for instance, In the case of an arrested person, or may be par .....

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ewhere near Bassein on the morning of the 22nd of March 1965, and when they were near Bhendi Bazar, accused No. 2 told the driver to allow him to get down, but the driver told him that he would go ahead and would come there again, and that later on he stopped the car near Church-gate in front of the excise office. In my opinion, that does not, however, show that the accused persons would have been allowed by the excise officer to get down from the car, if they had wanted to do so, whatever the d .....

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hat it has been held that customs officers are persons in authority within the terms of Section 24 of the Evidence Act (66 Bom, L. R. 482 at p. 484) = (AIR 1965 SC 481 at p. 483), there can be little doubt that excise officers would also be persons in authority within the terms of that section. It has also been laid down by the Supreme Court that the expression "accused persons" in Section 24 Includes a person who subsequently becomes an accused, and that he need not have been accused .....

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s made during the time that an accused person was in illegal custody, or in the custody of the police, or has been under arrest and custody for a prolonged period of time have, no doubt, been excluded by courts on the ground that they did not appear to have been made voluntarily, but the custody in all those cases was complete custody from which it appeared to the court that the confession could not be voluntary. If the Allahabad High Court intended to lay down anything more in Madar's case, .....

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of Queen Empress v. Basvanta, (1900) ILR 25 Bom. 168 hi which it has been held that the use of the word "appears" in section 25 of the Evi-dence Act indicates a lesser degree of probability than would be necessary if "proof" had been required, but, even so, the court observed (at p. 1172) as follows:-"still although we think that very probably a confession may be rejected on wellgrounded conjecture, there must be something before the Court on which such conjecture can r .....

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of proof is relaxed. Even so, the laxity of proof permitted does not warrant a court's opinion based on pure surmise. A prima facie opinion based on evidence and circumstances may be adopted as the standard laid down. To put it in other words, on the evidence and the circumstances in a particular case it may appear to the court that there was a threat, inducement or promise, though the said fact is not strictly proved. This deviation from the strict standards of proof has been designedly ac .....

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s anything in the evidence or the circumstances in the case before us to show that the confessions of the two accused were obtained by any inducement, threat or promise within the terms of Section 24 of the Evidence Act. It may be mentioned that there is no suggestion, and indeed, that has not been argued by Mr. Jethmalani at all, that there was any inducement or promise given to the accused persons at the time of obtaining their confessions which would vitiate the same. Mr. Jethmalani has howev .....

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story of his statement having been obtained by threat. No such suggestion has been made to Superintendent Robb in the course of cross-examination. Indeed, the cross-examination of Superintendent Robb shows that the case that was sought to be made out on behalf of the 1st accused was an entirely different one viz. , that two statements of his were recorded, and that what was being produced was not the original statement of the 1st accused. That was also the case that was sought to be made out in .....

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t he wrote and signed as Superintendent Robb stated. There is, therefore, not even a suggestion of a threat contained in that statement which accused No. 2 has made under Section 342 of the Criminal Procedure Code. Even as far as accused No. 1 is concerned since no such case was put to Superintendent Robb in the course of cross-examination, in my opinion, there is nothing in the evidence to lead us to the conclusion that any threat "appears" to have been used in procuring the confessio .....

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t contention of Mr. Jeth-malani that the confessions of the accused persons in this case cannot be true must also be rejected. It is true that the confession of the 1st accused is recorded in a manner which is somewhat incoherent, in so far as it states that what they set out to bring from Bassein were spare parts, and then abruptly states, in the course of the narrative which follows, that the accused got down from the car, went down the road and contacted the fishermen and ascertained that the .....

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ssion, he had been to the New Roshan Talkies on Faulkland Road to see a picture, and that he got acquainted with accused No. 2 who was sitting by his side, and during the course of casual talk he came to know that accused No. 2 was a person who could arrange to provide motor cars on hire, and that he showed him his house which was in the vicinity of the said cinema theatre. He has stated that thereafter they used to meet each other. The 2nd accused has in his confession (Ex. 18) said that the 1s .....

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I do not think there is any inconsistency in the versions which each of the accused persons has given in regard to how he came to know the other. It may well be that they first happened to meet in the New Roshan Talkies and got acquainted with each other, but that their acquaintance developed thereafter in the manner stated by the 2nd accused in his statement. Mr. Jethmalani has next relied upon what he states to be the discrepancy in the versions given by the accused persons and the versions g .....

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ead and turn the car and come back where they had got down, that the car accordingly went ahead and turned back to the place where they were waiting, and that in the meantime he and the 2nd accused had gone down the road and contacted fishermen and ascertained that they had brought the gold. He proceeded to state that he told the driver to get down from the car and to keep the engine running and the four packages containing gold were then placed in the dicky of the car, and they got in and start .....

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ar was halted. The point which Mr. Jethmalani sought to make was that Superintendent Wagh does not speak in his evidence of having seen the accused persons getting down from the car, or of the gold being loaded into the dicky of the car, as the accused persons have said in their confessions, in this connection, it must, however, be pointed out that the excise party was about 4 or 4i furlongs away from the place where the car of the accused had halted and the lights having been put off, It may we .....

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hink that the mere omission to state this little detail should affect the credibility of the evidence given by witness Wagh or witness Surti or the truth of the confessions made by the accused persons. In my opinion, there is no substance in the contention of Mr. Jethmalani that there is material, either intrinsic in the confessions themselves or extrinsic in the evidence in this case, to show that the confessions in question are not true. ( 6. ) The last contention of Mr. Jethmalani is that the .....

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rroboration of the confessions (Exs. 17 and 18) made by the accused persons which have been recorded by Superintendent Robb under Section 108 of the Customs Act, 1962. First and foremost, there is the evidence that when the accused persons were confronted by the excise party and were questioned as soon as they were intercepted as to why they had come there, they remained silent for some time, but then accused No. 2 admitted that they had gold in the dicky of the car. That the excise party would .....

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it is inconceivable that a raiding party would not confront the persons with whom they had concern with that question at the earliest opportunity. The 1st accused has no doubt eaid that he did not know whether accused No. 2 had admitted that there was gold in the dicky of the car, when he was questioned under Section 342 of the Criminal Procedure Code, but in his confessional statement (Ex. 17) he has stated that when the excise party questioned them, they gave the correct answer and said that t .....

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norance in regard to the contents of the car or explaining his movements, would show that he knew that there was gold in the car. There are other facts and circumstances proved by the evidence which also show that the accused persons knew that they were carrying gold in their car. In addition to the fact that gold was actually found in the car and the accused persons were also found in the same car, the movements of the car at dead of night lurking from one place to the other, as disclosed by th .....

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o Section 114 of the Evidence Act by reason of the fact that the said driver has not been examined by the prosecution as a witness. It can certainly not be doubted that the driver Bapu would have been in a position to throw light on the circumstances in which he was engaged, and perhaps also the circumstances in which the gold came to be loaded into the car. It is, however, not obligatory on a court to draw a presumption of adverse inference under Section 114 of the Evidence Act, the illustratio .....

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way of cross-examination why the driver was not examined, but no objection appears to have been raised on behalf of the accused persons when that purshis was filed suggesting that the driver should be called, or that he was required by them for cross-examination. In a similar situation the Privy Council in the case of Banwari Lal v. Mahesh, 45 Ind. App. 284 at pp. 287-288= (AIR 1918 P. C. 118 at pp. 119-120) declined to draw an adverse inference when no question had been raised at the trial as .....

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