TMI Blog1961 (8) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... decided to follow them. Sitaram Agarwalla and Bholanath Gupta got into a bus of route No, 32 and the constable also boarded the same bus. Sitaram Agarwalla and Bholanath Gupta got down from the bus at the junction of B. K. Pal Avenue and J. M. Avenue and so did the constable. These men took their seat in a park known as Narendra Deb Square. The constable kept watch on them from a distance. After a while these men came out and stood on the western footpath of J. M. Avenue. After sometime a baby taxi came there from the south along J. M. Avenue and stopped there. The accused Wang Chih Kaw was in that baby taxi. He came down and shook, hands with the accused. Sitaram Agarwalla and all the three then got into the baby taxi. When the taxi was about to start, the constable disclosed his identity to the driver and asked him to stop. He asked all of them to go to the thana, but the accused Sitaram Agarwalla and Bholanath Gupta got out of the taxi and tried to run away. The constable caught hold of them and put them inside a police wagon which happened to come up. The Chinese accused then tried, to escape. The constable asked the members of the public to secure him, and three young men of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them to help him in arresting the two men, and also the Chinese gentleman who came out of the taxi after those two men and that these young men then chased the Chinese gentleman who was actually arrested by a sergeant who came from the other side. It is possible that the three young men who were engaged in talking among themselves, did not see the two men Sitaram Agarwalla and Bholanath Gupta getting into the taxi, but this was noticed by P. W, 1 Ram Sevak Ojha, the constable, because the constable was actually keeping a watch On them there appears to be no reason to disbelieve the evidence of the constable who at least in part is corroborated by the evidence of the three young men who had no reason to give false evidence in support of the prosecution case. 5. Mr. Dutt has pointed out that the first G.D. entry which was made when the constable and the sergeant arrived at the Shampukur Police Station with the accused was not exhibited. It appears from the evidence cf P. W. 7 Sub-Inspector, S.D. Banerjee, that a later G.D. entry recorded at 2-50 p.m., was proved in the case as Ext. 6 and it gives a summary of the prosecution case as stated by the constable, p. W. 1 in court; but a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is for the time being in force as aforesaid; or If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods. The charge framed against Sitaram Agarwalla was that by going to meet the accused Wang Chih Kaw, who had 23 smuggled gold bars in his possession, and by taking with him a sum of ₹ 49,320/-the accused disclosed a previous arrangement for the purpose of purchase of the smuggled gold and thereby the accused was concerned in dealing with the smuggled gold. Now, it has already been found that it is reasonably clear that the appellant Sitaram Agarwalla did go to meet the Chinese accused with the intention of purchasing smuggled gold; but it is difficult to agree with the finding of the learned magistrate that by merely going in order to purchase smuggled gold in accordance with a previous arrangement, it could be said that the appellant Sitaram Agarwalla was in any manner dealing with the smuggled gold. If the purchase had actually been completed so that the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is absurd to suggest that between them they could have produced the 23 gold, bars of about 16 tolas each valued at over ₹ 40,000/-. In the circumstances, the evidence of P. Ws. 2, 3 and 5 as to the appellant Wang Chih Kaw having thrown away the packets of gold bars which they picked up, must be accepted, and it must be held that the Chinese accused, was in possession of the gold bars in question. 9. The next question is whether the gold was smuggled gold. The learned Presidency Magistrate relied on the presumption which might be drawn from Section 178A (1) of the Sen Customs Act. Section 178A(1) runs as follows : Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized. Sub-section (2) defines the articles to which this section applies. The articles include gold manufactures. It is clear that this presumption will arise only when the goods are seized under the Sea Customs Act. Section 178 of the Sea Customs Act provides how goods may be seized under the Act, as follows : An ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are Chinese gold bars. Import of such, gold bars into India is restricted, vide the evidence of P. W. 10 Manik Chand Banerjee, an Assistant of the Exchange Control department, Reserve Bank of India. P. W. 10 gave the dates from which the restriction order has been, in force, as 1939 and again 1947. In 1939, the restriction order was an order under the Defence of India Rules. After the termination of emergency due to the Second World War, such, restriction order lapsed, but thereafter under the Imports and Exports Control Act, 1917, restriction on the import of gold was imposed by Notification No. 12(11)F-1/48 dated August 25, 1948. Since August 25, 1948, import of gold into India can be made only under a general or special permit granted by the Reserve Bank of India, P. W. 10 stated that no one with fee name .Wang Chih Kaw had applied for or obtained a permit for import of gold between 25th August, 1957 and 25th August, 1958, i.e. during one year preceding the seizure of foreign gold from the accused Wang Chih Kaw. The accused Wang Chih Kaw did not claim that he had imported the gold under a valid permit. In his statement under Section 342 of the Criminal procedure Code, he discla ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under or by virtue of this Act with respect thereto governs only the act first described, viz. acquires possession of'', and not the other acts next mentioned, and that in respect of such other acts, it is sufficient that the person concerned should have knowledge that the goods are smuggled. But having regard to the construction of the clause, we are unable to accept the argument of the learned Standing Counsel. We must hold that the words describing the necessary mens rea govern all the acts mentioned in the first paragraph of Clause 81 of Section 167 of the Sea Customs Act. In other words, the clause only deals with acts done in order to smuggle goods successfully; it does not include in its scope a person who subsequently obtains smuggled goods, though the smuggled, goods themselves are liable to be confiscated when seized. 13. The learned: Standing Counsel has referred to the observation of the Supreme Court in (S) 1983ECR1657D(SC) , in connection with the genesis of Section 178A of the Sea Customs Act, viz. that the Central Government appointed a Taxation Inquiry Commission, and the Commission recommended, among other things, that smuggling be made a criminal off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uggled gold. Hence, as regards the law, the decision in the unreported case cited was nor different from the view we are taking. As regards the point whether the facts proved in that case were such as to show that the accused had knowingly and with intent to evade the restriction Order, acquired possession of the gold bars, we have nothing to do with the same; each case has to be decided on it's own facts and evidence. 16. In the present case, even though the disclaimer by the Chinese accused of any connection with the gold bars seized, and his having found with a jacket with six pockets on him, may give rise to suspicion, the evidence in our opinion is not sufficient to establish that the accused Wang Chih Kaw was himself the direct smuggler or did any act in connection with the process of smuggling, and had the intension of evading the restriction Order as to the import of gold into India. Hence he must also be given the benefit of doubt and acquitted. 17. Accordingly, both these appeals are allowed and the conviction of the appellants under Section 167 (81) of the Sea Customs Act and the sentences passed thereunder are set aside. The appellant Wang Chih Kaw is discharg ..... X X X X Extracts X X X X X X X X Extracts X X X X
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