TMI Blog1968 (12) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... le 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. m. they saw a car coming from the Vaireshwari side which came near the bridge and turned a little and put off its lights and went on to the kachcha road leading to the salt pans, that the Said car turned again and came towards the bridge, but halted after going off the road, that the said car waited there for about 10 or 15 minutes whereupon the raiding party started their vehicle to go to see what the matter was, that in the meantime that car had come on to the main road and the raiding party, 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 Jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of sanction and other formalities having been gone through, accused Nos. 1 and 2 were thereafter prosecuted and were convicted by the trial Judge, as already stated above, and were sentenced to three years' rigorous imprisonment for the offence under Section 135 of the Customs 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, 1962, which enjoin that they should be put up before a Magistrate without unnecessary delay , the confessions which were obtained from them whilst they were in illegal custody must be regarded as having been obtained under compulsion and not to have been made voluntarily, with the result that they would be hit by the provisions of Section 24 of the Evidence Act; (2) that the confessions of the accused persons are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 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 that contention Mr. Jethmalani has relied upon an old decision of a Full Bench of the Allahabad High Court in the case of Empress v. Madar, 1885 All. W. N. 59 (FB), but a careful perusal of that case shows that in the judgment itself the learned Judges have made a distinction between formal arrest, and what they have called a condition of restraint which, in fact, amounted to the accused being in the custody of the police , since the accused was not a free agent capable of going 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 have been under arrest as such. Mr. Jethmalani has also relied upon a decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e placed them under arrest in 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, 1962. The question, however, still survives as to whether the accused persons could be said to have been in the custody of the excise officers so as to lead the court to the conclusion that the confessions obtained from them were not voluntary and were therefore hit by the provisions of Section 24 of the Evidence Act and should be excluded from consideration as was done by the Allahabad High Court in the case of 1885 All. W. N. 59 (FB) which has already been cited above. Arrest is a mode of formally 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 S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the expression in custody is not to be found in Section 24 of the Evidence Act, and the question as to whether an accused person was in custody at the time of making a confession arises only for the' purpose of finding out whether that confession appears to the court to have been caused by inducement, threat or promise within the terms of that section. Confessions 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, 1885 All. W. N. 59 (FB), I do not agree with the same. In my opinion, however, the mere fact that there may be some restriction on the movements of the accused, or the accused person may be under some sort of surveillance at the time when he makes a confession, would not ipso facto vitiate the confession as being inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, 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 however contended that the fact that the accused persons were in custody at the time when their confessions were taken amounted to the use of some sort of threat in obtaining their confessions. In this connection, it may be mentioned that the first accused has in his statement under Section 342 of the Code of Criminal Procedure said that his signature to the statement was obtained by threat and by force saying that he would otherwise be beaten, but that is the first time that he has come out with the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ainted with each other. The first accused has in his confession (Ex. 17) said that, about a month prior to the date of that confession, 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 1st accused was staying in a hotel at Dadar but used to come daily to Opera House to purchase motor parts and at tunes used to dine in a hotel named Bilam Hotel near Grant Road which was located in the vicinity of the residence of the 2nd accused himself, that he (the 2nd accused) used to go for walks towards the Grant Road Hotel daily at night after meals and that he used to talk to the 1st accused who would come to dine in the said hotel, and it was in that way that their acquaintance developed. I do not think there is any inconsistency in the versions which each o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een put off, It may well be that the excise officers could not see the precise movements of the occupants of the car or the loading of the gold into its dicky in darkness at that hour of the night. Mr. Jethmalani has also commented on the fact that Inspector Surti has not only not mentioned the getting down of the accused persons from their car or loading of the gold into the dicky of the car, but has not even mentioned that they were, for 10 or 15 minutes, watching the movements of the car of the accused. I do not think 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 there is no corroboration in regard to the only important point in this case viz. , as to whether the possession of gold by the accused was conscious possession. As far as the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould 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 the evidence, are themselves sufficient to show consciousness on the part of those occupants in regard to what it contained. Mr. Jethmalani has, however, strongly commented on the fact that the driver of the car Bapu who, it is admitted in the evidence of panch witness Kane as well as Inspector Surti and Superintendent Robb, was actually present in the course of the trial in the lower court, has not been called. He has asked the court to draw an inference in the manner stated in Illustration (g) to 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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