Bombay High Court
Sayad Mohammed Sadiq And Ors. vs G.S. Narang, Asst. Collector Of D.R.I. ... on 18 October, 1991
Equivalent citations: 1992(1)BOMCR359
JUDGMENT S.M. Daud, J.
1. This revision takes exception to the conviction and sentences recorded against the petitioners for their allegedly committing offences punishable under various sections of the Customs Act, 1962 and section 120-B of the Indian Penal Code.
2. The petitioners before me were arraigned along with some others as accused Nos. 2, 3, and 4. The case of the complainant-respondent No. 1 who is an Assistant Director attached to the Directorate of Revenue Intelligence, was, that the Directorate had received a tip that Indian nationals travelling from Singapore to Dubai via Bombay and vice-versa by flights of the Singapore Air Lines (SAL) were indulging in smuggling of gold of foreign origin into the country. In this object the Officers of the SAL were being utilised by the smugglers. A team of Officers of the DRI kept a watch at the Santacruz Airport on the night in between 5th and 6th of September, 1979. Flight No. SQ-73 landed at the Airport a little after midnight on 6th of September, 1979 and the DRI Officers along with panchas boarded the aircraft. The suspects who were accused Nos. 1,2, and 3 were occupying adjacently situated seats in a rear row of the craft. Facing them were attache cases. The accused were holding tickets entitling them to journey from Singapore to Dubai via Bombay. The documents with accused No. 1 to 3 were checked. All of them were asked whether they had any baggage on their person or in the attache cases containing gold. All three replied in the negative. The Commander of the aircraft, one Captain Dobie, was summoned and asked if the accused Nos. 1 to 3 had made any declaration to him regarding their carrying gold. Captain Dobie replied in the negative and further stated that no in gold was manifested in the flight.
3. In the passport folder of accused No. 2 were found various articles including a photograph which was later identified to be the likeness of accused No. 4. Accused Nos. 1 to 3 were off-loaded I and brought to the Customs office along with their attaches. The checked-in baggage of the three accused was also brought down from the aircraft. In the presence of the panchas the attache cases of the three accused were examined. Gold of different quantities was found in the attache cases of accused Nos. 2 and 3. Nothing incriminating was found with accused No. 1. The said gold along with various odds and ends including tickets and photographs etc. were attached.
4. Accused No. 4 was the Catering Officer of the SAL and was seen hurriedly going up the ladder. Strangely enough, on sighting the Customs Officers he tried to rush down, but was' stopped by an Officer of the Customs standing on the platform. He was also detained for a questioning.
5. Statements of accused Nos. 1 to 4 were recorded and accused No. 5 was fetched from a hotel in Central Bombay. When confronted with accused Nos. 1 to 3, accused No. 4 admitted knowing these three persons and receiving gold from them when they were in transit from Singapore to Dubai or vice versa but via Bombay. Accused No. 5 was identified by accused No. 4 as a person who had been introduced to him by Lucian Dharmai and Jolly Massey. The last named person was the recipient of the smuggled gold. Accused No. 6 was traced in a hotel at Mangalore and brought to Bombay where his statements were recorded. Accused No. 7 i.e. Jolly Massey, was traced after some days and his statement was also recorded. Accused No. 9 was later traced in a hotel at Bombay and produced only after the complaint had been instituted. Accused Nos. 8,10 and 11 were reported to be at Dubai and never turned up.
6. The investigation carried out by the Officers revealed a wide ranging conspiracy between the 11 accused and others unknown. This gang between February to September 1979 had succeeded in smuggling gold worth about 7 crores. Lucian Dharmai working with the Swiss Airways, Catering Department introduced accused No. 4 to accused Nos. 5 to 7 in about February/March 1979. As a result of the discussion, accused, No. 4 promised to help accused Nos. 5 to 7 in the smuggling of gold from Dubai to India, using for that purpose transit passengers of the SAL. The party at Dubai was to inform accused Nos. 5 to 7 about the dates of SAL flights to be used by the carriers of the contraband. In turn, accused No. 4 would also be informed of this. The carriers were to don a white cap for the purposes of identification and also carry with them a photograph of accused No. 4. As soon as the SAL aircraft landed at Santacruz, accused No. 4 would enter it and locate the carrier. Once a carrier and accused No. 4 identified each other, the former would deliver the packet's containing gold from his attache case to accused No. 4. As, the Catering Officer, accused No. 4 would conceal the contraband into the beverage flasks or edible ovens which were to be taken out of the aircraft on food trollies to the flight kitchen of Chefair. The last named is an institution which supplies food and drinks for passengers and crew travelling by different airlines. As the Catering Officer, accused No. 4 was entitled to take delivery of the unconsumed beverages and edibles (leftovers) from the crafts and remove the same to his residence from the Chefair kitchen. For this purpose accused No. 4 had the assistance of various people including loaders and drivers. Gate-passes were required for the removal of the left-overs from the Chefair kitchen to the residence of accused No. 4. In this manner the gold would be removed from the carriers and brought to the residence of accused No. 4. The team of carriers engaged for this purpose by the conspirators included accused Nos. 1 to 3. The consignors were accused Nos. 8 to 10 and 11. Some instances of gold smuggling, had taken place without detection prior to 6-9-1979. The DRI Officers had got wind of the consignment coming by the flight reaching Bombay after midnight on 6-9-1979 and therefore they could nab the culprits.
7. In the course of the investigation several people including the culprits were examined. Their statements were recorded under sections 107 and 108 of the Customs Act, 1962. Concerned as I am with the cases of accused Nos. 2, 3 and 4, the narration will be restricted to the cases as against these three persons, the stands taken by them and the rest of the accused in so far as these require a reference to the stands taken by the present accused. Accused No. 9 was discharged at the very inception and accused Nos. 8, 10 and 11 were not available. The trial therefore proceeded only as against accused Nos. 1 to 7.
8. Accused No. 2 admitted that he had come by the SAL flight going from Singapore to Dubai via Bombay. Accused Nos. 1 and 3 were not known to him and it was a coincidence that they happened to be occupying seats adjacent to his in the last row in which he occupied the third seat. He was not carrying any attache case. Customs Officers came with attache cases trying to foist them upon him. He replied in the negative when asked if any of the attache cases belonged to him. He denied that any inward declaration for gold or two debit slips of a Dubai firm and a photograph of accused No. 4 were found in his passport folder. Not carrying any attache case, there was no question of gold being found with him. The incriminating portions of the statements recorded by the Customs Officers were repudiated by accused No. 2 and this repudiation covers the statements made during the confrontation between him and accused No. 4.
9. Accused No. 3 admitted that accused Nos. 1 and 2 were his co-passengers scheduled for Dubai. They merely happened to be occupying seats adjacent to the one occupied by him in 364 the last row of the aircraft. He was not carrying any attache-case and the only suitcase of checked-in baggage belonging to him was in the hold. No gold was seized from him; no cap was recovered from his suit-case and there was no confrontation between him and accused No. 4. The incriminating portions figuring in his statements recorded by the Customs Officers were denied by accused No. 3.
10. Accused No. 4 admitted, that he was a Catering Officer of the SAL based at Bombay. His duties required him to enter and get loaded or unloaded beverages and food stuffs. On 6-9-1979 when the flight from Singapore arrived, he went up by the gangway. At that time he was in uniform. Half-way up the ladder, a Customs Officer, Entree by name, called him down and therefore he started descending. Another Customs Officer Siwalia who was standing on the upper platform called him up and he complied with this direction. He went into the aircraft as Siwalia allowed him to enter the same. Finishing his duties in the aircraft, he came back to the flight kitchen. The time then was about 330 a.m. Officer Ganpathy took him to the Customs enclosure and kept him in one room. Accused Nos. 1 to 3 were unknown to him and he was not concerned with the gold said to have been found on their persons. No confrontation had taken place between him and any of the three accused afore-mentioned. Accused Nos. 5 to 7 were not known to him and never had he had any dealings with them. The similarity in the photograph allegedly found in the passport folder of accused No. 2 to the one on his identity card being carried by him, was admitted by him. But he did not know how accused No. 2 came to possess a photograph of his. Lucian Dharmai was known to him. But it was not true to say that witness had arranged a conference between him and accused Nos. 5 to 7 in a hotel at Bandra. The incriminating portions from his several statements recorded by the Customs Officers were not admitted by him.
11. Accused No. 3 denied that any conference had taken place between him and accused Nos .4, 6 and 7 upon an introduction by Lucian Dharmai. Accused No. 6 denied being acquainted with accused Nos. 1 to 4 or 7. No discussion had taken place at a Bandra hotel between him an any of the other accused through the good offices of Lucian Dharmai. In fact that person was not at all known to him.
12. Accused No. 7 who is Jolly Massey denied that he was in any way concerned with the gold figuring in the case or smuggling. Accused Nos. 1 to 5 were not known to him. The letter allegedly found at the residence of accused No. 4 was not in his handwriting. The material seized from a concern of which he was a partner did not contain his handwriting. Therefore the opinion given by a Handwriting Expert about the similarities between his assumed handwriting and the disputed writing was of no consequence. Lucian Dharmai was not known to him.
13. To substantiate its case the prosecution examined 31 witnesses. The learned Chief Metropolitan Magistrate found accused Nos. 2 to 4 guilty. Accused Nos. 2 and 3 were convicted under section 120-B of the Indian Penal Code read with sections 135(l)(a)(b), 135(l)(a)(i) and 135(l)(b)(i) of the Customs Act. On each count the second and third accused were to undergo R.I. for three years and to pay a fine of Rs. 5,000/-. Non-payment of fine was to entail additional R.I. for four months. The substantive sentences were to run concurrently. Accused No. 4 was convicted under section 120-B of the Indian Penal Code read with section 135(l)(a)(b) of the Customs Act and sentenced to R.I. for four years and to pay a fine of Rs. 20.000/-. Non-payment of fine was to entail additional R.I. for six months. Accused Nos. 1, 5, 6 and 7 were acquitted.
14. Accused Nos. 2 and 3 preferred Criminal Appeal No. 77 of 1983 and accused No. 4 preferred Criminal Appeal No. 53 of 1983 against the convictions and sentences recorded by the learned Chief Metropolitan Magistrate. The learned Sessions Judge dismissed both the appeals holding that the convictions and sentences were proper. That is how the convicted persons have come up in revision to this Court.
15. Before I go into the factual aspects it will be necessary to set out the relevant provisions of the Customs Act and the Evidence Act. The relevant sections from the Customs Act, 1962 are set out below :---
"Section 107. Any officer of customs empowered in this behalf by general or special order of the Collector of Customs may, during the course of any enquiry in connection with the smuggling of any goods---
(a) require any person to produce or deliver any document or thing relevant to the enquiry;
(b) examine any person acquainted with the facts and circumstances of the case.
Section 108 : (1) Any Gazetted Officer of customs shall have power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with the smuggling of the goods.
(2) .....
(3) All persons so summoned shall be bound to attend ... and all persons so summoned shall be bound to state the truth upon any subject respecting which they are examined or make statements ...
(4) Every such inquiry as aforesaid shall be deemed to be a judicial proceeding.....
Section 138-B. (1) A statement made and signed by a person before any Gazetted Officer of customs during the course of any inquiry or proceedings under this Act shall be relevant, for the purpose of proving, in any prosecution for an offence under this Act, the truth of the facts which it contains---
(a) when the person who made the statement is dead or cannot be found or is incapable of giving evidence, or is kept out of the way by the adverse party or whose presence cannot be obtained without an amount of delay or ex-pense which, under the circumstances of the case, the Court considers unreasonable;
(b) when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.
(2) The provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.
Section 139: Where any document ---
(i) is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or
(ii) ......
and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the Court shall
(a) presume, unless the contrary is proved, that the signature and every other '' part of such document which purports to be in the handwriting of any particular person or which the Court may reasonably assume to have been signed by or to be in the handwriting of, any particular person, is in that person's handwriting...
(b) ....
(c) in a case falling under Clause (i) also presume, unless the contrary is proved, the truth of the contents of such document.
The relevant sections of the Evidence Act are :
"Section 30. When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.
Section 33. Evidence given by a witness in a judicial proceeding or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party. or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable :
Provided---
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine:
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation : A criminal trial or inquiry shall be deemed to be a proceeding between the prosecution and the accused within the meaning of this section".
Section 288 of Criminal Procedure Code, 1898 (old Code) reads as follows :---
"The evidence of witness duly recorded in the presence of the accused undo Chapter XVIII may, in the discretion of the Presiding Judge, if such witness is produced and examined, be treated as evidence in the case for a purposes subject to the provisions of the Indian Evidence Act, 1872".
16. Witnesses examined at the trial included Lucian Dharmai and Venkatrao. The form is the person who arranged for a get-together between accused Nos. 5 to 7 on the one hand and accused No. 4 on the other. Venkatrao is one of the loaders of Chefair. At the trial neither of the two witnesses supported the prosecution and for that reason the prosecution pressed for acceptance of their statements allegedly recorded under section 108 of the Customs Act, 1962. Razak and the four tempo drivers were not examined at the trial. The reason sought to be given by the prosecution for their non-examination is the alleged untraceability of these persons despite efforts made by a responsible officer of the Customs. The prosecution therefore sought to take recourse to their statements allegedly recorded during the enquiry under the Customs Act. Also sought to be relied upon by the prosecution were the statements of accused Nos. 1 to 5 and 7. Girija a maid-servant in the employ of accused No. 4 was said to be unavailable for examination at the trial and the prosecution sought to rely upon her statement recorded under section 108 of the Customs Act.
17. P.W. 1, Jairam an Intelligence Officer testified to the watch being kept by DRI Officers pursuant to receipt of information about smuggling of gold through Indian nationals travelling by SAL flights as transit passengers. The information received was that these transit passengers were passing on the contraband to the SAL staff during transit at Bombay. The verification carried out by Jairam and his co-officers led to three suspect passengers occupying the row of seats at Serial No. 56. The three seats bore sub-serial alphabets E, F and G. The occupants were accused Nos. 1, 2 and 3 and at the feet of these three passengers lay three brief-cases. When questioned about the ownership of the brief-cases only a black coloured Ecolac brief-case was claimed, and that, by accused No. 1. Accused Nos. 1 to 3 replied in the negative when asked if they were carrying any gold. Captain Dobie confirmed that accused Nos. 1 to 3 had not declared the carriage of gold by any of them and though such carriage was required to be notified under a notification even by transit passengers. Accused Nos. 1 to 3 were off-loaded and taken to the office room of the Customs unit. The checked-in baggage of the three passengers was sent for. In the passport folder of accused No. 2 were found some documents and a photograph. The documents showed an inward declaration for gold to Singapore Customs and also two debit slips from the Eastern Trade Corporation of Dubai, each for 1600 tolas of gold. In a brief-case of accused No. 3 were found two packets wrapped in paper which together contained 150 slabs of gold each weighing 10 tolas. Amongst documents and articles found in the brief-case was a white cap. There was also a dark brown coloured attache case also containing 160 gold slabs of 10 tolas each. In this attache case a diary bearing the name of accused No. 2 was also found. The third black coloured Ecolac attache case was opened by accused No. 1 with keys in his custody. Nothing incriminating was found in the attache case of accused No. 1 except a used ticket showing the performance of an earlier journey by a SAL flight on an earlier occasion by accused No. 1. The checked-in baggage contained nothing incriminating. The gold and the aforementioned documents and articles were attached under a panchanama and copies of the said panchanama were furnished to each of the accused i.e., accused Nos. 1 to 3. P.W. 2 Bhaskaran and P.W. 4 Kamat corroborate the account given by Jairam. P.W. 13 Sekhon and P.W. 27 lyengar who are both from the DRI boarded the aircraft along with other Officers of the DRI as soon as it came to a halt. They bear out the account given by P.W. 1 Jairam as to accused Nos. 1 to 3 being found in the rear row with attache cases lying at their feet. P.W. 17 Pavekar officiated as a panch for the recording of the first panchanama. Being the Chief Traffic Assistant in Air India he had gone on board the aircraft to collect some papers. Officers of the DRI took him to the last row of passengers and there pointed out three persons. These there persons were seated with bags at their feet. The reply given by the three passengers was not audible to Pavekar. The Captain of the aircraft was contacted and the three passengers together with their handbags were brought down and taken to the Intelligence Officer. Witness proved his signature on EX.P-26 and certified the correctness of the recitals appearing therein. Some of the answers given by Pavekar seemed to be self-contradictory and for that reason the prosecution was permitted to put leading questions to him. P.W. 3 Siwalia and P.W. 9 Entee are Superintendents of the Customs and DRI respectively. Siwalia says that accused No. 4 came up the gangway but on sighting the witness fled down. It was a command given by him which compelled accused No. 4 to re-trace his steps and come up to the platform where Siwalia was waiting. Entee testifies to the same effect. A confrontation was arranged between accused Nos. 1 to 3 on the one hand and accused No. 4 on the other. The gist of what transpired at this confrontation was recorded in the form of panchanama which is at Ex. P-55. Accused No. 4 is said to have identified accused Nos. 1 to 3 as carriers with whom he had dealt with in the past. In the same way accused No. 4 was confronted with accused No. 5 who was fetched from a hotel located in the Bombay Central area. The fourth accused is said to have identified accused No. 5 as being one ' Ashok' introduced as such to him by M/s. Lucian Dharmai and Jolly Massey. The night between the 5th and 6th of September 1979 was not the first time accused Nos. 1 to 3 were using the SAL for flying to and for Singapore-Bombay-Dubai. On the basis of manifesto of flights of earlier dates, it appeared that accused No. 1 had taken earlier flights on as many as six occasions, accused No. 2 on two occasions and accused No. 3 on four occasions. A search was taken on 6-9-1979 of the residence of accused No. 4, and, at a time when the said person's wife was present. At the search were found three photographs of accused No. 4 being identical in size and appearance etc., to a photograph of accused No. 4 found in the passport folder of accused No. 2. Also found was document marked Ex.P.-52-b which was the page of an exercise book with the following writing thereon :---
"Dear Jovi, Unfortunately, you were fast asleep. Yesterday also I came, leaving cash with Girja 20.
I will come any time. Please leave the schedule of Aeroflot, if you had brought. My man will be coming on Saturday night. If any problem leave message at home.
Sd/- Shankar."
The prosecution case was that Ex.P-52-b was in the handwriting of accused No. 7 whose code name was 'Shankar'. The clues provided by accused No. 4 succeeded in untravelling the message which accused No. 7 was seeking to convey to accused No. 4. The message was that accused No. 7 had kept Rs. 20,000/- with Girija which sum represented part of the earnings of accused No. 4 for the help given by him in smuggling of gold. Accused No. 7 refuted the authorship of Ex.P-52-b and the prosecution failed in its attempt to establish the contrary because of its inability to prove the existence of any natural writings of accused No. 7. Accused No. 7 was said to be a partner of a concern doing business at Bombay in the name of Satyam Photos. The premises of Satyam Photos were searched on 11-9-1979 by Entee in the presence of panchas. Partner of accused No. 7, Arsad Jainuddin, by name, was present. Some papers and exercise books were attached under the panchanama which is at Ex.P-60. Panch Mistry whose signature appears on Ex.P-60 does not admit his presence when the search was taken. Be that as it may, the recovery of the document is of no consequence for the prosecution has established no more than the author of the writings on the material attached under Ex.P-60 also being the author of Ex.P-52-b. But the requirement for the prosecution was to establish the authorship of Ex.P-52-b. In that the prosecution failed for the material recovered under Ex.P-60 is not proved to be the natural writing of accused No. 7. P.W. 10 Rajan who is an Assistant Security Officer in Chefair flight kitchen testifies to the mode in which beverages and snacks are deposited on flights of airlines which are the customers of Chefair and the removal of the left-overs after every flight. Accused No. 4 was a Catering Officer in the SAL and was given free gate passes to enter SAL aircrafts for the deposit of removal of food stuff and left-overs respectively. Accused No. 4's identity card had a photograph on it and this photograph was identical in size and likeness etc., to the other photograph of accused No. 4 found with accused No. 2.
18. Venkatrao who was working as a handy-man in the Chefair had been roped in by accused No. 4 to assist him in the carriage of gold received from the carriers to his residence which was outside the airport. What took place in the confrontation of Venkatrao and accused No. 4 is recorded in panchanama which is at Ex. P-58. Venkatrao and accused No. 4 admitted being previous acquaintances. In his deposition Venkatrao has not supported the prosecution. For that reason he was permitted to be cross-examined. At that time he disclaimed all that appeared in his statement recorded by the Customs Officers. The same is the case with Lucian Dharmai. In fact, it was this Lucian who arranged the meeting between accused No. 4 on the one hand and accused Nos. 5 to 7 on the other in a hotel at Bandra. The conference at this hotel led to emergence of a smuggling ring. Lucian admitted to being acquainted with accused No. 4 and also Mark Massey, the brother of accused No. 7. However, accused Nos. 5 to 7 were not known to him and it was not true to say that he had arranged for a conference between the three of them and accused No. 4. Confronted with the contrary recitals appearing in his statement recorded under section 108 of the Customs Act, Lucian denied the same. Faced with the retraction by Lucian, the prosecution sought to avail of section 138-B of the Customs Act and sought to rely upon these statements as substantive evidence. Ex. P-75 dated 8-9-1979 is the first statement of Lucian recorded by Sekhon. In this statement Lucian acknowledged being acquainted with Mark Massey who had approached him with a proposal for smuggling of gold into India by use of flight kitchens. Lucian declined, but Mark persisted with his proposal and once again approached him to arrange a meeting between him and accused No. 4. Lucian agreed and that is how he got to know accused Nos. 5 to 7. The meeting between the foursome took place at Cafe Marina near Sea Rock hotel at Bandra Bandstand. This meeting took place in about March or February 1979. Marck Massey was not to come personally for the arrangement was that only his brother accused No. 7 would be present. Accused No. 5 gave out his name to be ' Ashok'. The net result was an agreement on the part of accused No. 4 to help accused No. 7 in smuggling activities. In March or April, 1979, Mark Massey met Lucian at his residence and made over Rs. 18,000/- to Rs. 20,000/- for being passed on to accused No. 4 being his reward for the help rendered in one successful operation of smuggling of gold. Mark Massey told him that accused No. 4 would come to his place and collect the amount. In the evening accused No. 4 came as intimated and collected the reward. On 6-9-1979 Lucian learnt through one Sunil Juneja of accused No. 4 having been held up by the Customs and cautioned against making any disclosures if he came to be questioned pursuant to information received by the Customs from accused No. 4. The next morning his wife showed him a news item in the Indian Express about the seizure of gold at the airport. The next time Lucian was examined was on 10-9-1979 and his statement is at Ex. P-75-a. Some photographs were shown to him and he identified three of these as being likenesses of accused Nos. 4, 5 and 7. Lucian gave details of what he knew about the three persons and the meeting he had arranged between them at the Bandra hotel. Significantly, Ex. P.-75-a as also the first statement made on 8-9-1979 by Lucian which is at Ex.P.-75, are written by Lucian in his own handwriting. On 27-10-1979 a third statement of Lucian was recorded, again in his own handwriting. Present on that occasion was accused No. 6. This accused was identified by Lucian as the third person introduced to accused No. 4 in the meeting which had taken place at Cafe Marina. On 31-10-1979 Lucian gave a statement at Ex P -75-d and that was when he was shown Mark Massey. The last statement of Lucian was recorded on 3-11-1979 which is at Ex.P.-75-d. At that time accused No. 7 was shown to Lucian and this person was identified by Lucian as the brother of Mark Massey and one of those was had been present at the meeting in the Bandra Hotel.
19. P. W. 15 Venkatrao's statement under section 108 is what we now come to. His first statement recorded on 10-9-1979 is at Ex.P-81. As a Loader in the Chefair flight kitchen at Santacruz he had occasion to go with high-lift vans to aircrafts of Singapore Airlines and even other airlines. Accused No. 4 became acquainted with him because of the said person's position as a Catering Manager of SAL. He and Razak were singled out by accused No 4 for some assignments. These entailed receipt of objects wrapped in paper received from the passengers by accused No. 4. The packets were to be inserted in the juice flasks which were to be removed from the aircrafts. Sometimes the packets received from accused No 4 had to be kept in ovens. For different assignments carriered out by the witness for accused No. 4 he used to get a reward of Rs. 1200/-. The packets given by accused No 4 were carried to the Chefair flight kitchen and there off-loaded and deposited in space marked as the SAL preset-area. The off-loaded flasks and ovens were dumped into tempos engaged by SAL to carry the left-overs to the residence of accused No. 4. Accused No. 4 used to accompany the tempos, but Venkatrao himself had nothing further to do after the contraband had reached the Chefair fight kitchen and deposited in the SAL preset-area. The second statement of Venkatrao was recorded at Ex P-81 a on 18-9-1979. Witness speaks of what he and Razak had done at the bidding of accused No. 4 on 29-8-1979. In this statement Venkatrao also spoke of what had transpired between accused No. 4 and Razak on 3-9-1979 Whenever accused No. 4 went to his house in tempos after midnight, he and Razak used to accompany accused No. 4. As said earlier Venkatrao at the trial went back on the previous statements for which reason the prosecution sought to lake recourse to section 138-B of the Customs Act so that these previous statements could be read as substantive evidence.
20. Learned Counsel for accused No 4 argues that statements repudiated by Venkatrao and Lucian were of little value and that in any case did not advance the prosecution case any further
- the retracted statements being little more than accomplice evidence. On the other hand Counsel representing the DRI contends that a statement under section 138-B if found to be voluntarily made must be presumed to be representative of the truth and by itself sufficient not only against the maker but also those Jointly tried with him. To appraise the correctness or otherwise of the stands taken by the rivals, the similarities and divergences between the relevant portions of section 138-B of the Customs Act as also section 33 of the Evidence Act and section 288 of the Code of Criminal Procedure should not be lost sight of Unlike the positions contemplated by section 288 of the Code of Criminal Procedure and section 33 of the Evidence Act, section 138-B does not contemplate the presence or representation of the person to be affected by the statement at the time the said statement is recorded. Section 138B provides for the admissibility of a statement made and signed by any person before any Gazetted Officer of the Customs during any enquiry or proceeding under the Act. Sub-Clause (b) of section 138-B(1) enables the admissibility of a statement when the person who has made the statement is examined as a witness in a proceeding before a Court of law. Of course, the admissibility is conditioned upon the Court being of the opinion that having regard to the circumstances of the case, his statement should be admitted in evidence in the interests of justice It is true that the protection given to the affected person by section 288 of the old Criminal Procedure Code and section 33 of the Evidence Act is far greater in respect of previous statements sought to be made admissible than under section 138B of the Customs. Act. In those cases the previous statement is given in a judicial proceeding at which the affected party is present or is represented. In fact section 33 goes to the extent of providing three important safeguards viz., that the proceeding was between the same parties or their representatives in interest that the adverse party in the first proceeding had the right and opportunity to cross-examine, and, lastly that the questions in issue were substantially the same in the first as in the second proceeding. Similarly, under section 288 of the old Criminal Procedure Code requires that the accused was present and had the opportunity to cross-examine a witness testifying before the Magistrate inquiring into the matter which was to culminate in an order of committal. It was only when the witness testifying at the committal proceeding retracted at the trial, that his previous statement i. e. statement given at the committal stage, was taken over in the sessions case as substantive evidence. Comparing the safeguards and limitations of statements rendered admissible under section 33 of the Evidence Act and section 288 of the old Criminal Procedure Code, the accused are at a disadvantage when confronted with previous statements recorded under section 138-B and sought to be utilised under Sub-Clauses (a) and (b) of section 138-B of the Customs Act. But then section 138-B has been enacted to deal with a special situation. Drastic remedies have to be devised to counter deleterious situations. A person at an enquiry or proceeding under the Customs Act, 1962 hardly has the time or the composure to think up a story to explain away his mis-deeds. At the stage at which the offender is apprehended he has to make a clean breast of the whole affair. The Officers interrogating him are persons in authority. They do not have unlimited power over the deponent. Even if the deponent makes a statement before them which is of an incriminatory nature, the said statement is not conclusive as against the maker thereof and it is not as if the section gives conclusive weightage to the statements recorded. Under section 138-B(1)(b) it is the circumstances of the case which are the paramount factor to be taken into consideration by the Court before it allows the use of a previous statement to be utilised against the witness who goes back therefrom at the trial The expression "circumstances of the case" entails a consideration of all the relevant factors First, is the position of the maker of the statement His performance in the witness box at the trial has to be compared with that conceivable when he was examined in the enquiry or proceeding before a Gazetted Officer of Customs. Next, his demeanour has to be taken into consideration for the Court to make up its mind to reach the opinion that the interests of justice require taking recourse to the previous statements made by him, though at the trial he may choose to say the contrary or be evasive in his replies. Under Sub-Clause (b) of section 138-B(l) there is not much of a difficulty in taking recourse to the previous statement of the witness. At the trial answers given or the demeanour of the witness may indicate an intent to deviate from the truth and therefore the interests of justice require that recourse be had to his previous statements recorded by a Gazetted Officer of the Customs The greater difficulty is when the prosecution seeks to rely upon the first sub-clause viz, Sub-Clause (a) of section 138-B(1) of the Customs Act. Under this Clause the Court can take recourse to a previous statement recorded before any Gazetted Officer of Customs if the maker of the statement (a) is dead or cannot be found, (b) or is incapable of giving evidence, (c) or is kept out of the way by the adverse party, (d) or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. There should be no difficulty in justifying the recourse to the previous statement when the maker of the statement is dead. After all statements which are relevant and made by dead persons are admissible under the rule of necessity even under the Evidence Act. The same goes for a previous statement in relation to a relevant fact made by a person who cannot be found. If a person cannot be found he is as good as dead and because the trials cannot be prolonged indefinitely, recourse is had to the principle of necessity by making use of the previous statement of the witness not being found. The third contingency is that of a person who becomes incapable of giving evidence. This would govern the cases of persons who since the making of previous statements have become dumb or insane or afflicted by an illness which prevents them from comprehending questions likely to be put to them at the trial. The next category is of statements made by persons who have somehow managed to place themselves under an obligation or stranglehold of the adverse perty whereby the adverse party is able to keep them out of the way. The last category is of persons whose presence cannot be obtained without an amount of delay or expense, which under the circumstances of the case, the Court considers unreasonable. It is argued by learned Counsel representing accused Nos. 2 to 4 that the prosecution has not been able to establish firstly the making of serious attempts by the Officers of the Customs to trace and produce in Court witnesses like Girija, Razak and the four tempo drivers. The witness examined on this point is P.W. 31 Subhedar. He testifies that he had tried to trace Girija and the persons contacted by him in this connection were accused No. 4 and his wife. They gave him to understand that Girija had left accused No. 4's employment and that they were not aware of her subsequent whereabouts. Exception is taken to the truthfulness of this assertion on the ground that Subhedar has not recorded the statements of accused No. 4 and his wife. The defence would have found a way out even if Subhedar had recorded the statements of these two persons. Accused No. 4 could not in investigation be expected to concede firstly that he had terminated the employment of Girija and next telling Subhedar that he was not aware of her then whereabouts. Nor could the wife of accused No. 4 be expected to give any such incriminating statement. Assuming the contrary viz., that accused No. 4 and his wife did concede at the investigation that Girija had been discharged by them and that they had therefore lost touch with her, the prosecution could not but have maintained that accused No. 4 and his wife were going back on what was said by them in the course of investigation. As to Razak, Subhedar states that he learnt of Razak having gone to the Gulf. This statement is based on hearsay and the person from whom Subhedar secured the information has not been examined. But for that reason Subhedar cannot be disbelieved. After all at the trial the prosecution did examine Lucian Dharmai and Venkatrao knowing full well that these persons were in the position of accomplices and not expected to support the prosecution an through the case. Therefore examining Razak would not have been a precedent setting event. If Razak was available he would have been surely located and examined. When therefore Subhedar says that Razak is not traceable his word has to be accepted. The words used in the last clause of Sub-Clause (a) of section 138-B(1) are "without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable". These words do not require the prosecution to move heaven and earth and make unusual efforts to locate the witness and then seek leave from the Court to tender his previous statement for use at the trial. What the prosecution is expected to do is to make a reasonable effort, whether in terms of physical movement or expenditure, to try and produce the witness. If these reasonable efforts do not yield the desired result, the Court will consider the efforts put in by the prosecution as reasonable in the circumstances, dispense with the production of the witness and permit the prosecution to avail of the previous statement. Reliance has been placed upon certain decisions to contend that the conditions requisite for admitting a previous statement have to be strictly proved before the alleged previous statement can be taken on record. In Kulbushan Sharma v. State,1976 Cri.L.J. 1433 it was held ---
"...before the Court can direct the evidence of a witness to be read in evidence it must arrive at a finding after taking necessary evidence, that the witness could not be procured without delay or expense or for any other reason as contemplated by the section. In the absence of any such finding it would be difficult to hold that the Court has really applied its mind to the facts of the case. Merely saying in the order that the witness is not available, without proper material on record, is to give a finding based on almost no evidence. It must be proved strictly that the witness was not available or was incapable of giving evidence in the later stage of judicial proceedings before invoking section 33 of the Evidence Act. Unless that is done, it would be quite improper and irregular to order that the previous deposition of the witness should be read at the trial".
To the same effect is the decision reported in Chainchal Singh v. Emperor . Applying the ratio to the facts of the present case there is the evidence of Subhedar that he had made efforts to trace Girija, Razak and the four tempo drivers. He went to the places where they were expected to be found but without any success. The argument is that Girija's native place was known to the investigating agency and better efforts could have been made to trace Razak and the four tempo drivers. As said earlier, section 138-B(1) contemplates the making of 'reasonable efforts' and what is 'reasonable' will have to be judged in the light of the circumstances of each case. Here, Girija had testified to something which incriminated her master to a great extent. The first thing the master would do on coming to know of what she had said was to pack her off to some place where she could not be traced by the investigating agency. Girija was not a native of Bombay and her native place is not some place to which the investigation agency at Bombay can have easy access. Razak had disappeared into the Gulf and that is an area which covers several countries with porous borders. Razak being aware of what he had said during the course of interrogation under section 138-B was not likely to be unaware of the possibility of his being treated as an accomplice and roped in along with the others facing trial. Therefore there is nothing strange about his disappearing and not leaving behind any reliable information as to his subsequent whereabouts. In this state of the record it is not surprising that Subhedar could not locate his whereabouts. Of course it can always be said that better efforts should have been made for had this or that person been questioned perhaps more reliable information about Razak could have been collected. As said earlier the section envisages the making of reasonable efforts and not super-natural efforts. The four tempo drivers were said to be in the employ of Chefair and therefore their whereabouts could have been traced by the prosecution. But it is no one's case that drivers were privy to the smuggling being carried on by accused No. 4, with or without, the connivance of Razak and Venkatrao. Therefore, examining or failing to examine the four tempo drivers, is not of any consequence.
21. In the light of the foregoing, the conclusion emerging is that Sub-Clauses (a) and (b) of section 138-B(1) could be had recourse to in the present case - it being a different question as to how much credence should attach to the statements so recorded. Where Sub-Clause (a) is attracted the prosecution will have to establish that the maker of the previous statement falls under one of the categories specified in this Clause. In regard to Sub-Clause (b) the maker of the previous statement is examined as a witness at the trial, but because of his words or demeanour leaves the impression that he is deviating from the truth. For that reason he gives a physical demonstration of his testimony at the trial being unreliable. The prosecution may then submit his previous statement for appraisal before the Court and the Court "in the interests of justice" may choose to act upon the said previous statement. For the purposes of relying upon the previous statement the Court will go by the usual tests of the voluntary nature of the previous statement, the genuineness thereof and the absence of pressure or inducement to the maker in the making of the said previous statement. In so far as Sub-Clause (a) is concerned the Court will have to be more careful in making use of the previous statements. It is not only that the prosecution has to establish the conditions making the previous statement admissible. That apart, some intrinsic truth in the previous statement will have to be proved in order to make the same usable as substantive evidence at the trial. The need for circumspection is greater because the maker of the previous statement is not available for cross-examination by the party going to be affected by such statement. Also not to be forgotten is the fact that the maker of the previous statement was not available for cross-examination or contradiction by the party sought to be bound by the said statement when the same was given in the enquiry or proceeding before a Gazetted Officer of the Customs. The need for circumspection apart, there still remains the question as to which portions in the previous statement should be relied upon and to what extent? Generally speaking, any such previous statement if it has a ring of truthfulness and voluntariness should be accepted and more-so if there be corroboration in material particulars coming from other sources brought forth at the trial. The previous statements may themselves furnish intrinsic proof of the voluntary nature of the same. A person though in custody is not necessarily under such a pressure as to come out with disclosures which are going to effect him in the future. Custody known to be lawful, however unpleasant it might be, will not necessarily compel a person to come out with false inventions to secure a release. Therefore, when the maker of a statement incriminates himself in a statement before a Gazetted Officer of the Customs and if that statement has a ring of truthfulness, there should be no difficulty in the Court accepting such a previous statement when tendered at the trial. The fact that a provision of law is unconventional or sounds draconian to those steeped in the nineteenth century concepts of Anglo-Saxon jurisprudence cannot be a reason for attempting to deodorise it. There may be details in the previous statement and these details may relate to the previous life of the maker and the manner in which the crime was committed which furnish intrinsic proof of the truthfulness of the statement. The previous history of the maker is something which is not normally known to Investigating Officers. Many times the revelations are of a nature which only the maker thereof can be aware of. In the instant case several accused have come out with details of their lives which the Investigating Officers could not have concocted. Accused No. 2 gives his address at Bombay where he lived with his mother and two sisters, the address of milk vendor with whom he used to work at Bombay, his academic attainments, securing of a job in Dub on a modest salary of 800 dirhams, the telephone of the concern which was owned by accused No. 8, how became to be acquainted with accused Nos. 1 and 3, what he did with them on previous occasions as also how they came to be together on 6-9-1979. The documents found with him were explained in detail by him. These included a photograph of accused No. 4. two debit slips, an inward declaration - the last two given to him at Singapore by accused No. 3 - a map of Malacca Hotel and bills for payments made at the hotel. He also gave details about the post box number of a Dubai address, the full identity of Arifbhai Bawamiya and Bawamiya Brothers who are the Directors of Arab Plastics with whom be had taken up employment, the relationship between him and Arifbhai, the explanation of the white cap found in the attache case belonging to accused No. 3 etc., etc., All these are matters which the Customs Officers could not have invented from out of the thin air.
22. Accused Nos. 2, 3 and 4 were questioned a number of times. What is significant is that in none of these statements, what was said by them on earlier occasions did they retract. They did make a retraction and this was on 10-9-1979 when they addressed applications to the Magistrate through the Superintendent of Prison in which they were lodged. Even after the said retraction epistle accused persons were questioned and they did not go back on what they had said previously. Accused No. 2 was questioned twice on 6-9-1979 and then twice 7-9-1979. Accused No. 3 was interrogated on 6-9-1979. Accused No. 4 was questioned on 6-9-1979, 7-9-1979,12-9-1979,14-9-1979 and 19-9-1979. Significantly, though he had retracted his first two statements i.e. statements made on 6-9-1979 and 7-9-1979 on 10-9-1979, he did not in the subsequent statements recorded on 12-9-1979, 14-9-1979 and 19-9-1979 say anything about the charge of having been compelled to come out with falsehoods on the earlier two occasions. In fact, on these three dates he re-confirmed the correctness of what he had stated on 6-9-1979 and 7-9-1979. In this situation, Counsel for DRI is right in submitting that the retractions were the result of legal advice and that the confessions reflected the truth. The details given out by accused No. 4 were not insignificant. Much of what he said could have been known only to himself. There is first the recital appearing in his statement about having given a photograph of his to accused No. 7. Next, was the disclosure that the gold received from the carriers used to be concealed by him in the ovens and flasks of left-overs which he was entitled to carry to his residence. It can be argued that experienced Customs Officers are capable of inventing this fib even without receiving any information from the likes of accused No. 4. Using of the catering staff for the purposes of removal of contraband from the aircrafts to outside the airport is not something common. Accused No. 4 further spoke of learning of the arrival of contraband through carriers from accused Nos. 5 to 7. These persons had met accused No. 4 in a conclave which took place in a Bandra hotel, shortly after accused No. 7 had contacted accused No. 4 at the instance of his brother Mark Massey. Accused No. 5 was introduced to him as ' Ashok' though his real name was Dawood Shaikh. The use of persons of Indian or Pakistani origin for working as carriers by the consignors of gold which is not common, was disclosed by accused No. 4 in his statement recorded under section 108 of the Customs Act. This also shows the absence of any tutoring to accused No. 4 by the Customs Officer. Incidentally, it shows the consignors making the task of accused No. 4 easy as he was more likely to be conversant with faces of natives of the sub-continent rather than strangers to the region. Accused No. 4 identified Ex. P-52-b and the fact that this was not proved to be in the handwriting of accused No. 7 has been commented upon by defence Counsel. The inability of the prosecution to fix the authorship of Ex.P-52-b upon accused No. 7 is for the simple reason that they could not locate his natural writings. Of course it is on the basis of the code words used in Ex.P-52-b that accused No. 4 conjectured accused No. 7 to be the author of the note. There was a reference to the figure '20' in the note and this meant Rs. 20,000/-. Next, the writer of the note had described himself as Shankar and only accused No. 4 could help the Customs Officers in unravelling the identity of accused No. 7 to be the 'Shankar' referred to in the note. But for the explanatory statement of accused No. 4, Ex.P-52-b is unmeaning. In the search of the residence of accused No. 4 on 6-9-1979 a number of documents were attached. Accused Nos. 1 to 3 were brought into the presence of accused No. 4 and his further statement was then recorded. The three accused i.e., accused Nos. 1 to 3 were identified as persons from whom accused No. 4 used to receive gold packets. That accused No. 4 at the trial disclaimed having made any such statement is to be expected. If he is to he believed be did not know accused Nos 1 to 3 prior to 6-9-1979 and therefore had no reason to falsely implicate them. Yet they were described as carriers of gold who were working in tandem with him. Accused No. 5 was brought before him and identified as a person going by the name of 'Ashok to his knowledge. Both accused Nos. 4 and 5 identified each other as person who had been brought together by Jolly Massey and Lucian Dharmai. The statement dated 17-9-1979 finds accused No. 4 admitting that he had gone through Ex.P-34-a i.e., a statement of his recorded on 6-9-1979 and finding the contents thereof to be true. A photograph of accused No. 7 was shown to him and when questioned in relation to this photograph, accused No. 4 admitted the same to be of accused No. 7. In token of having recognised the said photograph, accused No. 4 was asked to and did affix his signature on the reverse of the photograph. On 12-9-1979, he admitted that the foreign exchange required for his trip to Singapore in 1979 had been purchased by him from out of the money received from accused No. 7 for his services in enabling the despatch of gold from the carriers to destinations for which the gold was meant at Bombay. The fact that he had gone to Singapore could have been uncovered by the Customs on their own. But the manner in which the foreign exchange required for the trip was purchased could not have come to their knowledge without assistance given by accused No. 4. Accused No. 4 gave further details as to how he came into contact with accused Nos. 5 to 7 or Mark Masseey. This was because he was no novice to smuggling. In the past he had helped some smugglers in the smuggling of wrist watches and other articles. This had become known to those interested in smuggling of gold. Accused No. 7 and Lucian Dharmai fixed up a meeting between him on the one hand and accused Nos 5 to 7 on the other. In the conversation that took place, accused No. 5 made it clear to accused No. 4 that he and an associates were not unaware of the smuggling of wrist watches in which accused No. 4 was engaged. To lend substance to their claim accused No. 5 gave out that the leakage had come from someone engaged in the same wrist watch smuggling business. Accused No. 4 was told that his rewards would be greater if he co-operated with accused Nos. 5 to 7 and Mark Massey and further that there would be no leakage of his doings. Suitably impressed and tempted accused No. 4 agreed to act as a conduit for the passing of gold from carriers to destinations outside the airport. This could not have been invented by the Customs Authorities and put into the mouth of accused No. 4. In his statement on 14-9-1979 accused No 4 admitted the truth of the contents of the note addressed by accused No. 7 to him as also the receipt of Rs. 20,000/ - for one of the smuggling operations. That accused Nos. 2,3 and 4 were part of the smuggling gang is borne out by the section 108 statements of accused Nos. 5, 6, 7 and P.Ws. Lucian and Venkatrao. The acquaintance of these persons with the broad outlines of the smuggling ring and awareness of at least some of them of the modus operandi lends a ring of truth to the statements sought to be utilised by the prosecution under sub-clause (a) of section 138-B(1) of the Customs Act.
23. Exception is taken to the use of the statements of the makers as against the co-accused. The argument is that the co-accused and indeed persons like Lucian Dharmai, Venkatrao, Razak and others were accomplices. Being so placed their statements were in the nature of statements made by culprits against each other. The case relied upon in Chepampara Chellappan v. State of Kerala . In that case it was observed:---
"The law is well settled that the Court looks with some amount of suspicion on the evidence of an accomplice witness which is a tainted evidence and even section 133 of the Evidence Act clearly provides that the evidence of an accomplice witness should not be accepted unless corroborated At the same time, it must be remembered that corroboration must be in respect to material particulars and not with respect to each and every item however minor or insignificant it may be. Actually the requirement of corroboration is a rule of prudence which the courts have followed for satisfying the test of the rehability of an approver and has now been crystalised into a rule of law It is equally well settled that one tainted evidence cannot corroborate another tainted evidence because if this is allowed to be done then the very necessity of corroboration is frustrated".
Special emphasis is laid by petitioners' Counsel on the last sentence of the above passage. That this is the position in law is not and cannot be disputed. But here the matter does not rest upon the corroboration of one piece of tainted evidence by another such piece. Apart from the confessional statements there are important corroborative circumstances. First, is the fact of accused Nos. 1 to 3 among by SAL flight and sitting on the last row of the seats. By itself this may be a mere co-incidence for the passengers were after all Indian citizens hailing from Bombay and possibly choosing adjacently situated seats so as to have the benefit of each other's company in the course of a long journey. But their choosing to mingle their checked-in baggage cannot be ascribed to a mere happen-stance. Pooling of baggages by persons going to the same destination shows some degree of intimacy. In the instant case the pooling is more significant seeing that accused No. 1 by himself carriers almost no baggage meant for the cargo manifest. Next each accused had at his feet attache case. Those lying at the feet of accused Nos. 2 and 3 contained incriminating material. None of the accused i.e. accused Nos. 1 to 3 had made a declaration about carrying gold as was required to be done under the law. They had been made aware of this requirement by Captain Dobie, the Commander of the aircraft. In the passport folder of accused No 2 was found an inward declaration stamped by the Director General of Customs, Singapore showing accused No. 3 declaring gold worth 1 million dollars. This declaration bore the date 30-8-1979. On the preceding day i.e.. 29-8-1989 accused No. 3 had taken delivery of two parcels of 1600 tolas of gold each meant for himself and one Mohammed Ismail. This was from a concern known as Eastern Trade Corporation, Dubai. Thus an explanation was required from accused No. 2 as to how he came to be in possession of documents relating to accused No. 3. The truthful explanation was given by him in his statement under section 108 of the Customs Act. At the trial he disclaimed having given any such explanation and totally disclaimed the finding of Exs. P-9 and P-10 i e.. the declaration and debit slips from his custody. One of the four documents found with accused No. 2 was a photograph of accused No. 4. The stand taken at the trial was that accused Nos. 2 and 3 were not known to accused No. 4. The appearance of a stranger's photograph in the personal baggage of accused No. 2. had to be explained. No such explanation was forth-coming, except the usual disclaimer about the photograph ever having been with him. From the custody of accused No 3 was seized a white cap. This cap has been explained in the section 108 Customs Act statements of accused Nos. 2, 3, and 4. The carriers were to make themselves known to accused No. 4 by wearing a white cap on their heads. This was the signal for accused No. 4 to identify the carriers Exception is taken to the uncorroborated testimony of a Customs Officer on the subject of the finding of four documents with accused No. 2 and the cap with accused No. 3. A panch who was in the employ of Air India Pavakar by name was examined by the prosecution. In examination-in-chief this witness supported the stand taken by the prosecution. However there were breaks in the recording of his testimony at the trial When it came to cross-examination, Pavekar gave answers which were either favourable to the defence or not as supportive of the prosecution as was the case with him when be was under examination-in-chief. The Sessions Judge who heard the appeals against the conviction has remarked that the change in Pavekar's testimony was due to an inducement or threat having been given to the witness. This does not appear to be an incorrect inference for otherwise there is no explanation for the diametrically opposite stands taken by the witness. In fact Pavekar himself, was compelled to concede that the panchanama to which he bad lent his signature reflected much of what had taken place in his own presence and within his hearing. In other words, the search panchanamas relating to the recoveries made upon to be search of the baggages of accused Nos. 1 to 3 were a correct record of what had transpired. To the same effect-is the inference flowing from the statements of accused Nos. 2 and 3 recorded under section 108 of the Customs Act. Both of them were interrogated on 6-9-1979 and 7-9-1979. The note retracting these statements was sent for the first time on 10-9-1979 in a communication addressed to the Chief Metropolitan Magistrate. Significantly, the retraction seems to have been the result of some sort of an arrangement between accused Nos. 1 to 4 for all of them made the retraction on a common date i.e., on 10-9-1979. For the petitioners it is argued that there was no sense in accused Nos. 2 and 3 carrying the photograph of accused No. 4 or the white cap. This was because it was the prosecution's case that in early 1979, if not prior thereto, accused Nos. 2 and 3 had both met accused No. 4 in the course of one of their visits to Bombay and that because of this meeting it was not necessary for accused Nos. 2 and 3 to wear any identification marks or carry with them the photograph of accused No. 4. In reply, it is argued that instructions given to accused Nos. 2 and 3 regardless of how far they were of any significance in the changed circumstances were carried out by the persons concerned and this seems to be correct for it can never be forgotten that people may carry identification marks even in respect of known faces so as to avoid the possibility of making any mistake. Therefore, no taint of make-believe attaches to the carrying of a photograph of accused No. 4 and a white cap by the carriers.
24. The constant refrain of the petitioners has been that bar their statements under section 108 and the references made by them to each other plus such references to be found in the section 108 statements of accused Nos. 5, 7, Lucian Dharmai, Girija and Venkatrao, there is nothing which can be described as independent corroboration of a reliable character to connect them with the offences for which they have been convicted and sentenced. This is not a correct reading of the evidence. Fairly appraised, the case against the petitioners may be categorised as under:---
(a) Accused Nos. 1 to 3 coming by the SAL flight and sitting in the rear row of the aircraft. All three bad attache cases facing them and two of these which faced accused Nos. 2 and 3 had gold bars therein.
(b) Accused Nos. 2 and 3 carrying documents and articles showing that they were together. The manifested luggage had been pooled together and accused No. 2 carried with him documents which should really have been in the custody of accused No. 3. These were as inward declaration form showing the declaration of gold at Singapore on 30-8-1979 - the declaration being in the name of accused No. 3. Next there were two debit slips showing the purchase of two parcels containing gold bars each parcel weighing 1600 tolas. The debit slips stood in the name of accused No. 3. Now if these documents were in the name of accused No. 3, they should have been in his custody, but were fourd with accused No. 2. Accused No. 3's attache case carried a white cap, whereas the photograph of accused No. 4 was found in the custody of accused No. 2. Thus, each carried something with him to make himself known to accused No. 4 or enable that person to identify him.
(c) The third circumstance to show that the petitioners were acting in tandem is to be found in the discovery of a companion photograph at the house of accused No. 4 which was duplicate of accused No. 4's photograph found with accused No. 2. The resemblance between the two photographs was so remarkable that it could be said with reasonable certainty that the photographs had been developed from the same negative. Accused No. 4 denied that his house was searched or that the photograph and the chit allegedly brought by accused No. 7 were recovered from his house. A contention is taken that the prosecution has not examined the panchas who were present at this search for which reason an adverse inference should be drawn against the prosecution. There is really no reason to disbelieve the Officer who conducted the search. The non -examination of the panchas is possibly ascribable to the likelihood of these persons repeating the performance of Pavekar, who after starting on the right note tilted towards the defence. It is not necessary to go into the possible reasons for this deviation from the straight and narrow path. That the prosecution could contact people as differently situated as Lucian Dharmai, Venkatrao, Razak and Girija is another circumstance testifying to the truthfulness of the recitals appearing in the confessional statements of accused Nos. 2 to 4. What happened inside the aircraft has been spoken of by a number of officers and the testimony of these officers like P.W. 1 Jairam. P.W. 2 Bhaskaran, P.W. 3 Siwalia. P.W. 4 Kamat, P.W. 5 Sahane, P.W. 9 Entee, P.W. 13 Sekhon, P.W. 27 lyengar and P.W. 31 Subhedar remains unshaken. Coupled with the confessional statements, the finding of the white cap, the photograph of accused No. 4, the recovery of the note at the home of accused No. 4 and finding of photograph of accused No. 4 similar to the one found in accused No. 2's possession - all point to a conspiracy between these accused. Also taken into consideration by the courts below are the alleged suspicious movements of accused No. 4. Learned Counsel representing accused No. 4 contends that the courts below had mis-read evidence in relation to the movements of accused No. 4. There is merit in this contention. It has been assumed that accused No. 4 entered the aircraft from the rear side and this because of the knowledge that the carriers were said to be in the rear row. According to one of the Customs Officers accused No. 4 while going up the front gangway back-tracked on sighting the Customs Officer. Seeing this, the Customs Officer called him back and made him stand on the top platform of the gangway. But neither Officer admits that accused No. 4 effected an entrance from the front gangway. Having regard to the discrepancy it would be safer to ignore this factor.
25. The statement of Girija recorded under section 108 of the Custome Act is said to be innocuous as she did not reveal the name or description of the person who had brought the note and packet. True as this is, what stands established is that the same person had brought the note purporting to be a communication from accused No. 7. That accused No. 7 was the author of this note may or may not be literally true. This is because the handwriting on the note has not been compared with the natural handwriting of accused No. 7. But accused No. 4 in his section 108 statement has decoded the note and therefrom it is clear that the communication related to a reward of Rs. 20,000/- paid to accused No. 4 for services rendered by him. From Girija's statement we get the message that a person had brought that note at a time when accused No. 4 was sleeping inside his home. In his statement under section 108 of the Customs Act accused No. 4 corroborates the contents of the note in so far as it relates to his being asleep when the outsider came. Without this clarification of accused No. 4 it would not be possible to decipher the contents of the note. The section 108 statements of Lucian Dharmai, Girija, Venkatrao and Razak lend corroboration to the retracted confessions of accused Nos. 2 to 4. It is not enough to say that one piece of tainted evidence cannot corroborate another. There can be cases where only tainted evidence is admissible and because such evidence comes from tabled sources it cannot be discarded when the circumstances point to the inherent truthfulness, thereof. Judged in that light what we see in the present case is a string of circumstances so inter-connected as to bear out the basic truthfulness of the confessions of accused Nos. 2 to 4 not only vis-a-vis themselves, but each other also. The frequent trips made by the accused persons on fights run by the SAL is itself an incriminating circumstance. According to their statements recorded under section 108 accused Nos. 1 to 3 were not well-to-do or employed in such well paid jobs as to enable or require them to travel from Dubai to Singapore and back at the frequency they did. The dates of the flights made by the accused are as follows:--
Accused No. 1 : 14-3-79, 6-8-79, 20-8-79, 3-9-79,11-8-79, 22-8-79 and 6-9-79.
Accused No. 2 : 19-3-79, 29-8-79 and 6-9-79. Accused No. 3 : 2-4-79, 11-4-79, 23-4-79, 30-8-79 and 6-9-79.
Accused Nos. I to 3 come from poor backgrounds and were doing lowly paid jobs at Dubai. They are not the sort of persons who would normally undertake or be sent on so many trips as the above from Dubai to Singapore and back. The only explanation consistent with these flights is that they were engaged in some suspicious business. Their statements under section 108 indicate that they were in the business of smuggling of gold as transit passengers and that the link between the consignors at Dubai and the receivers at Bombay was accused No. 4. Next comes the happenings inside the aircraft as soon as the flight landed on 6-9-1979. Accused Nos. 2 and 3 did not claim the attache cases lying at their feet. Yet, the documents found with them such as the tickets made it clear that they were travelling together and had pooled their baggage. When questioned they outrightly denied that they had brought any gold with them. Once the two attache cases were opened and found to contain gold bars the Customs authorities had no alternative but to bring down the passengers as also the baggage. Knowing that the game was up and also that their link - accused No. 4 - had been apprehended, accused Nos. 2 and 3 broke down and made a clean breast of the whole affair. With accused No. 2 were found four documents at least two of which should have been in the custody of accused No. 3. Accused No. 3 could not explain how the documents found with accused No. 2 were in his name when he had nothing to do with the gold or the inward declaration made at the Singapore Airport. Therefore, accused Nos. 2 and 3 had to confess that they were travelling together and that the gold had been given to them for transmission to the receivers at India through the medium of accused No. 4. Accused No. 4 when confronted with his photograph if the custody of a total stranger and a cap could not have bluffed his way out and therefore, came out with the truth that he was a party to the smuggling. Once that admission was given he had to give details as to how the scheme operated. This brought in a whole lot of persons as also outlines of the scheme worked out by him and his co-conspirators. Accused No. 5 was apprehended and be also lent corroboration to the confessions made by accused Nos. 1 to 4. In time to come were apprehended Mark Massey's brother the 7th accused. Lucian Dharmai and the rest. Lucian Dharmai and Venkatrao are of course accomplices. Their testimony had to be scrutinised with caution. What these persons say is supported by re confessional statements of accused Nos. 1 to 4. Is true that Lucian Dharmai has tried to distance himself as much he possibly can from any blameworthy pan in the smuggling operations. Even so he admits that at the persuasion of Mark Massey he arranged for a meeting between accused Nos. 5,6 and 7 on the one hand and accused No. 4 on the other. Lucian Dharmai was chosen because of his being more or less in the same line as accused No. 4 - both being in the catering departments of foreign airlines i.e. accused No. 4 with the SAL and Lucian Dharmai with the Swiss Airlines. The courts below have considered the evidence in its entirety and I cannot do better than reproduce circumstances against the petitioners as enumerated by the learned Sessions Judge at para 109 of his judgment:---
"In order to consider whether the prosecution has proved the above mentioned facts. I will briefly recapitulate the facts that have been proved by the evidence and accepted by me :--
(a) The accused Nos. 4,5 and 7 met at Hotel Marina a few months before the offence was discovered during which meeting they talked about smuggling of gold through transit passengers.
(b) Between 4-9-1979 and 6-9-1979, accused Nos. 1,2 and 3 stayed together in Malacca Hotel Room Nos. 30,32 and 33 purchased tickets to Dubai from the same agent and travelled together to Bombay in the same plane.
(c) While at Singapore, they spent the last day in the same room (No. 30) and packed the gold in two suitcases. The inward declaration (Ex.P-9) and the debit slips (Ex.P-10) in respect of 3200 tolas of gold in the name of accused No. 3 was kept with accused No. 2.
(d) The accused No. 2 knew accused No. 4 as he had on earlier occasions delivered gold to him at Bombay. On this visit too, the accused No. 4 was expected in the aircraft to receive contraband gold from the three accused.
(e) The two brief cases in which contraband gold was found were at the feet of accused Nos. 2 and 3. The accused No. 4 started running with a view to entering the aircraft soon after it landed but was detainee by the Customs Authorities. The three baggage tags were stapled to the ticket of accused No. 2 (Ex.P-2).
(f) The three accused had pooled their baggage. The accused No. 2 was to wear a white cap which would enable accused No. 4 to identify him in the aircraft.
(g) The accused No. 4 was to collect the gold and carry it through the containers of food which he was entitled to carry legitimately as the Catering Manager.
(h) The accused made statements under section 108 of the Customs Act (Ex. P-27, P-33 and P-34) admitting their roles.
(i) Gold weighing 3200 tolas was found in the brief cases lying at the feet of accused Nos. 2 and 3, which they did not claim.
(j) Inside the ticket of accused No. 2 were found three cabin baggage tags referring to the three brief cases including the two found at the feet of accused Nos. 2 and 3.
(k) The white cap (Ex.P-11) which accused No. 3 was to wear to facilitate identification by accused No. 4 was found in the brief case (Ex.P-24).
(1) In the baggage of the accused recovered from the cargo-hold, a zipper bag of accused No. 2 and 13 bills of Malacca Hotel, Singapore, were found.
(m) A bunch of two keys of the brief cases (Ex.P-24 and Ex.P-25) containing gold were found in the baggage taken from the cargo-hold.
(n) The accused No. 4 bad given the white cap (Ex.P-11) to accused No. 7 who passed it on to the other accused.
(o) The accused Nos. 1,2,3,4,5,6 and 7 knew one another as collaborators in the business of smuggling gold.
(p) The accused did not declare that they were carrying gold in the three brief cases cargo manifest (Ex.P -74) and statement of Captain Dobie (Ex. P-30)".
Added to these are impersonal circumstances such as the recovery of photograph and a note from the residence of accused No. 4, the lavish living indulged in by accused No. 4 and the huge expenditure incurred by accused Nos. 1 to 3 on the many flights undertaken by them from Dubai to Singapore viz. Bombay when they neither had the resources nor the jobs requiring the making of such journeys, we reach the inescapable conclusion that all of them were engaged in the smuggling of gold. The conviction against the petitioners cannot be faulted and has to be affirmed.
26. On the subject of sentence learned Counsel representing the petitioners have pointed out many mitigating factors. Accused Nos. 2 and 3 have undergone a fairly sizable portion of the substantive sentences imposed upon them. Roughly speaking, each of them has spent about a year in custody. The fines imposed on these petitioners have been duly paid. The incident of smuggling figuring in the case took place in the year 1979. Petitioners have had to face a long drawn out trial which came to an end in February 1983. The appeals preferred by them came to be decided in October 1985. The present revision was filed in 1985 and is being decided now. More than 12 years have passed since the crime was detected. Mr. Patwardhan submits that no indulgence should be shown to the petitioners. The scheme devised by them for the smuggling of huge quantities of foreign gold into the country showed diabolic minds at work. It was not as if the petitioners had participated in an odd or single event of smuggling. On the confession of accused No. 4 himself, he had enabled the smuggling of gold and other articles in large quantities into the country. Accused Nos. 2 and 3 had made more than one smuggling trip into the country before being apprehended. Economic offences such as smuggling had a deleterious effect on the economy of the country and light sentences encouraged repetition at such nefarious doings. But the circumstances pointed out by Counsel for the petitioners together with the fact that there has been no repetition of offences of any nature whatsoever on the part of petitioners cannot be ignored. If the petitioners have turned a new leaf, and, that seems to be the case, it will not be right to send them back to serve out the substantive sentences of imprisonment imposed by the learned Chief Metropolitan Magistrate. An upward revision in the fines will serve the ends of justice and therefore the order.
The conviction recorded against accused Nos. 2 and 3 under sections 135(l)(a)(i) and 135(l)(b)(i) of the Customs Act together with section 120-B of the IPC read with section 135(l)(a)(b) of the Customs Act, is hereby affirmed. Substantive sentences are reduced to the imprisonment already undergone by them and the fines enhanced from Rs. 5,000/- per count to Rs. 10,000/- per count. In the event of accused No. 2 and 3 failing to pay the fine amount within six weeks from today, they shall undergo R.I. for eight months per default.
The conviction recorded against accused No. 4 under section 120-B IPC read with section 135(l)(a)(b) of the Customs Act is hereby affirmed. His substantive sentence is reduced to the period already under gone - if any - and the fine is enhanced to Rs. 60,000/-. In the event of the fine not being paid within 10 weeks from today, accused No. 4 will undergo R.I. for 10 months.
Rule in the above terms made partially absolute.