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1972 (2) TMI 109

..... y the Bombay High Court against the judgment of that court affirming on appeal the conviction of the appellants under Section 135 of the sea Customs Act, 1962 and Section 23 of the Foreign Exchange Regulation Act, 1947 and the sentence of rigorous imprisonment for a period of- three years on the former count and one year on the latter count. The sentence on the two counts were ordered to run concurrently for each of the appeallants. Wali Mohammad died during the pendency of this appeal, and the appeal in so far as it relates to him has conserquently abated. We are now concerned with the appeal of Harbansingh alone, herein after referred to as the appellant. 2. The prosecution case was that on March 21, 1965 Anant Sadasiv Wagh (PW 1), who was in those days working as Deputy Superintendent, Central Excise and Customs, received telephonic intimation from his superior officer Jokhi that contraband goods were likely to be imported near Bassein and that Wagh should get ready. A car was thereafter sent to the house of Wagh. Wagh accompanied by Jokhi, Inspectors Jadhav and Surti and one constable left Vadala at about 10 P.M. and reached Bassein level crossing at about 1.30 a.m. They stoppe .....

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..... f the Customs Officers went with the accused in that car, while the remaining Customs Officials and panchas went in the other car. The two cars reached the Central Excise and Customs Office in Churchgate, Bombay at about 9 a.m. The four gunny bags were then taken to the office along with the two accused and the panchas. On opening the gunny bags, it was found that there were two jackets in each of the three gunny bags and one jackets in the fourth gunny bag. There were gold chips in all the seven jackets. The gold chips had two separate markings. One of the markings was "JOHNSON MATHEY LONDON 89.90 10 TOLAS" while the other marking was "M. ROTHSCHILD & SONS 99.90 10 TOLAS". There were in all 692 chips and they weighed about 6920 tolas. The value of gold according to the then market rate was about $ 6,75,000. The markings on the chips showed that the gold was of foreign origin. Such chips were also not prepared in India. 4. PW 4 James Robb, Senior Superintendent of Customs, who is authorised to record statements under Section 108 of the Customs Act, recorded the statements of the driver of the car of the accused as well as those of Wali Mohamad and Harbansing .....

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..... ur game was up, we thought to give the correct answer and therefore told them that there was gold consignment in our vehicle. The officers took away the keys of our vehicle and called panchas. With the panchas we were brought to Central Excise Office, Churchgate Bombay, where the gold and vehicle were seized under a Panchanama. I and Walimohammad had brought this gold for sale and profit. 6. Jokhi, after obtaining the sanction of the Collector of Central Excise, filed complaint dated November 3, 1965 against the two accused for their prosecution. 7. At the trial the appellant admitted that the car in which he and Wali Mohammad accused were present was intercepted at about 2 a.m. on March 22, 1965 near the bridge of Bassein creek by the party of Customs Officials. The appellant also admitted that when Wagh PW questioned them as to why they had come there and what was in the car, the appellant and Wali Mohammad had kept quiet. In answer to the question that Wali Mohammad had after some pause stated that there was gold in the dicky of the car, the appellant stated that he did not know. The appellant admitted that he had been shown the gunny bags in the dicky but, according to him, he .....

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..... dence Act or Article 20(3) of the Constitution. It is, however, urged by Mr. Chari that there is intrinsic evidence to show that the part of the confessional statement Ex 17 of the appellant wherein there is reference to the appellant and Wali Mohammad having contracted fishermen and about the bringing of the gold, was not made by the appellant but was introduced by Customs Officers. As such, according to the learned Counsel, the above statement should be held to be not reliable and the conviction of the appellant should not be based upon it. 11. We find ourselves unable to accede to the above contention. Robb (PW 4), who is Senior Superintendent of Customs, has deposed that he recorded statement Ex. 17 of the appellant. According to the witness, the appellant signed every page of the statement. The statement was then attested by the witness. No question was put to Robb PW suggesting that any portion of statement Ex. 17 had been inserted by the witness or any other Customs Officer. In the circumstances, the contention now advanced on behalf of the appellant that part of statement Ex. 17 was inserted by the Customs Officers without the appellant having made that part of the statemen .....

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