Madras High Court
Assistant Collr. Of Cus., Madras-1 vs Govindasamy Ragupathy on 14 June, 1997
Equivalent citations: 1998(98)ELT50(MAD)
JUDGMENT
1. The uniform case of the prosecution as disclosed in the above evidence and other circumstances could be summed up as under :
2. The accused arrived from Singapore by flight at the International Airport at Madras on the night on 17-7-1987 at about 11.45 p.m. P.W. 1 who was keeping surveillance at the International Airport Hall at Customs, noticed the accused, and on suspicion that he might be carrying gold in his baggage or in his person intercepted him while he was proceeding towards the exit gate. The accused was charged by the customs as per the clearance card Exhibit P-1. He had declared one Sony colour Television and other goods worth 75 dollars. P.W. 1 informed his Superintendent P.W. 2 about his suspicion and the interception of the accused. P.W. 2 ordered the detention of the accused. Two witness viz., T. V. Rajaram and Ragu from Duty Free Shop were called to be first at that spot P.W. 1 questioned the accused in the presence of the said witnesses and P.W. 2, as to whether he had any gold or contraband concealed in his person or in the baggage. The accused replied in the negative. P.W. 2 opened and examined the declared item T.V. in the presence of the witnesses, P.W. 2 and the accused. On opening the back side of the television he found a cylindrical electronic part in the P.C.B. had been tampered with. On opening the cylindrical part it was found to contain M.O. 4 series the seven gold bits covered with carbon paper. Three gold bits bore the markings Johnson Mathay London - 9990 - 10 Tolas. One gold piece had the marking 10 Tolas, Three small bits did not contain any markings (being the cut-ends of the first 3 big bits) M.O. 4 series weighed 410 grams on weighment (separate pieces) and the market value of the same was Rs. 1,20,960/-.
3. The accused did not possess any permit or licence for the import of gold. He also did not declare the gold to the customs. P.W. 1 seized the above properties, under the cover of Mahazar (Exhibit P-2) as also the other Exhibits P-1 and 3 to P-5. Then on the instructions of P.W. 2 the Intelligence Officer of the Customs House Thiru. Jayakumar recorded the Voluntary statement in his presence given by the accused on 18-7-1987 marked as Exhibit P-6, P.W. 3 the preventive Officer was summoned and examined the accused on 18-7-1987. The accused gave the statement in his own handwriting in Tamil and the same had been marked as Exhibit P-7. On 27-7-1987 for clarification when P.W. 3 again examined the accused he gave the statement Exhibit P-8 voluntarily in Tamil. P.W. 4 is the preventive Officer who placed the entire records containing Exhibit P-1 to P-8 before the Additional Collector of Customs for according sanction and on perusal of vital documents the sanction was accorded on 28-12-1987 in Exhibit P-9 and the complaint was filed accordingly against the accused in the Court for his prosecution.
4. Before the Trial Court, when the accused was examined under Section 313 of the Code of Criminal Procedure he had admitted the fact that he was intercepted by P.W. 1 on 17-7-1987 at 11.45 p.m. when at the exit point of the Meenambakkam International Airport he was in possession of the seizures including MOs 1 to 4 but only pleaded that he did not know the concealment of gold bits M.O. 4 series in the television set. He admitted the seizure of MOs 1 to 4 from him and also the statements given by him in Exhibit P-6 to P-8 but only would attribute at that stage that Exhibit P-6 to P-8 statements given by him were not voluntary and that he gave them to the dictation of the Officers.
5. In consideration of the charge, facts, circumstances and the oral and documentary evidences and that of the material objects placed before the trial court it arrived at the conclusion to convict the accused and to sentence him to undergo rigorous imprisonment for one year for the offence proved under Section 135(1)(a)(i) of the Customs Act, 1962 further imposing a fine of Rs. 1,000/- in default to undergo a further rigorous imprisonment for three months.
6. Against the said judgment of the lower Court, the respondent herein appealed to the Court of Sessions, Madras Division and the said Appellate Court in its judgment dated 15-11-1988 in Criminal Appeal No. 60 of 1988 allowed the said appeal filed by the respondent and acquitted the respondent, thus setting aside the conviction and sentence passed by the trial court.
7. Aggrieved against such reversal of the convicting judgment of the trial court the State has preferred the above appeal before this Court. The main contentions of the State in the above appeal are as under :
(i) The Court below has failed that under Customs Act, the purity of the gold smuggled need not necessarily be proved by the prosecution.
(ii) That the Court below has further failed to note that the evidence of P.Ws 1 and 2 is clear to the effect that from out of the seizures three gold bits are of foreign origin and four other without such marking since 3 out of them being the cut ends of the other three kept concealed in the M.O. 2 Television and that the said seizures have been effected at the exit point and these vital aspects have not been challenged at all by the defence.
(iii) The accused has not controverted that the seized material is gold and this vital aspect has not been considered by the Court below. Since admitted facts need not be proved inlant.
(iv) The lower court has erred in its finding that only by chemical examination or by the test of tough-stone it can be identified whether the metal seized is gold or not.
(v) The Court below ought to have held that from out of their long experience P.Ws 1 and 2 and from out of the markings and shape they have identified the metals to be gold and effected the seizure and the same is attempted to be smuggled into India.
(vi) The lower Appellate Court has erred in applying the principles laid down in 1980 Criminal Law Journal 533 to ... the facts of the present case, since the said case was decided under the Gold (Control) Act.
(vii) The Court below ought to have applied the principles of the case wherein similar to that of this case the accused had admitted possession of the contraband which too got concealed in a container.
(viii) The Court below has grievously erred in not applying the presumption contemplated under Section 138A of the Customs Act, which resulted in failure of justice.
(ix) The plea put up by the respondent/accused before the lower Appellate Court to the effect that he was not in conscious possession of the contraband should have been outright rejected by the Court below in the light of the principles laid down in very many judicial pronouncements and further in the light of the burden on the shoulders of the accused by Section 138A of the Customs Act.
(x) The Court below has further unnecessarily blammed the pattern of framing the questioning under Section 313 of Cr.P.C. by the Trial Court branding the same as omnibus questioning.
(xi) The lower Court has failed to attach the utmost importance for the voluntary statements of the accused given true to the facts and circumstances of the case, under pretext that the said statements were retracted by the accused.
8. With the above contentions, it was prayed on behalf of the appellant/State that besides upholding the conviction by the trial court, the minimum sentence contemplated by law should also be maintained in this case further, setting aside the judgment of the first Appellate Court below dated 2-11-1988 being erroneous and unjustified and calling for the interference by this Court.
9. On the contrary it was vehemently contended by the respondent as given hereunder :
1. The respondent was not in conscious possession of the contraband;
2. P.W. 2 who signed Exhibit P. 2 mahazar did not himself record the same but admittedly directed one Jayakumar to record the statement of the accused;
3. Though Exhibit P. 6 and P. 7 are said to have been recorded on 18-7-1987 to the same effect Exhibit P. 8 is said to a have been recorded on 27-7-1987 with a delay of nine days - no tangible reason has been assigned by the prosecution for the delay in recording of the statement in Exhibit P. 8.
4. The sanctioning authority did not appeared before the Trial Court but allowed P.W. 4 the Preventive Officer to speak to the according of sanction by the Assistant Collector, Customs.
5. The evidence of PW. 1 does not speak about the statements of the accused given in Exhibit P. 6 to P. 8.
6. Sections 107 and 108 of the Customs Act contemplate that only by a general or special order by the Collector of Customs any other officers may be empowered to record the statements during enquiry - no such order has been filed by the PWs 1 to 3.
7. As contended in the answer to the question under Section 313 of Cr.P.C. by the respondent/accused, only to the dictates of the Customs Officials Exhibit P. 6 to P. 8 having reduced into writing and they are not voluntary statements by the accused;
8. No scientific test was held to confirm either the metal to be gold or the purity of the same or the same to be of 24 ct.
9. Whether the seized gold is of foreign origin had not been substantially ascertained or proved.
10. Since being not conscious of possession of the contraband the accused did not have a culpable mental state as presumed under Section 138A of the Customs Act. The valuation of the gold at Rs. 1,20,950/- was the face value of the Customs officials and it was not properly arrived at the market value. Since they are of the value of less than Rs. 1 lakh. .... the provisions of law under which punishment could be contemplated is only under Section 135(1)(a)(ii) and not under Section 135(1)(a)(i).
11. Since an appeal against the acquittal could be contemplated only on specific legal grounds in the absence of such a State the judgment of the lower Court could not be justified for other reasons and hence the above appeal is sought to be dismissed confirming the judgment of the first Appellate Court.
10. So far as the main contentions of the appellant and objections by the respondent both on facts and in law are concerned, we can categorise them in the order given below to answer the same for arriving at a valid conclusion.
1. Whether it is true that the alleged MO. 4 series gold bits have been seized by PWs 1 and 2 and whether the respondent was not in conscious possession ... of the same and if so with what legal consequence;
2. Whether it was improper of inadequate in evidence with regard to identifying the metal seized in MO. 4 series as gold by P.Ws 1 and 2 further branding the same as of foreign origin and whether any serious irregularity has been committed in concluding the weighment of the same to be 410 Gms. and the value of the contraband to be of Rs. 1,20,960/- and whether a chemical test and expert opinion is inevitable to conclude the above facts.
3. Whether the statements of the accused contained in Exhibits P. 6 to P. 8 could be relied upon as voluntary statements as claimed by the appellant or should be discarded on grounds that it was to the dictates of the Customs official or as a retracted confession and whether it could be concluded that these confessions have been retracted even in the bail application as done by the Court below.
4. The effect of Section 107 and 108 of the Customs Act on the present case and whether any lapse is contemplated on the part of the prosecuting officials with regard to the requirements of the said sections.
5. Whether the transmissions as contemplated and the proof shifted to the shoulders of the accused under Section 138A of the Customs Act have been cast off by the respondent in the circumstances of the case and in evidence.
6. Whether the Trial Court is competent and is justified in awarding a lesser punishment than what is contemplated as minimum punishment by the statute in the event of arriving at a conclusion to convict the accused.
7. Whether the lower Appellate Court is justified in setting aside the conviction and sentence of the Trial Court.
11. As far as the question concerning the M.O. 4 series whether the contraband, seized are gold or any other type of metal much less pure gold of 24 carats as declared by the prosecution officials have been made points for debate by the respondent. Though the Trial Court had not doubts to be entertained with regard to the metals being gold and of the purity of 24 carats and of the value of Rs. 1,20,960/- as ascertained by the prosecuting official by simple and bare assertion from out of their long experience and from their own source, the first Appellate Court would cast doubts with regard to the purity of gold bits since not ascertained by chemical test and that scientific experts have not offered their opinion. The lower appellate court has been under miserable misconception of the fact since it has not at all realised that the accused did not at all dispute the metal being either gold or of foreign origin since admittedly they were brought by him from abroad and that they got seized in the Airport itself immediately after the accused alighted from the aircraft, from out of his possession which got concealed in the television which in turn got declared by the accused to be belonging to him and all these facts have been more fully established by the Exhibits P-1 to P-8 which are unshakable evidences. More over it is the settled law that admitted facts need not be proved.
Even on the very light suspicion cast by the defence of late for having not tested the M.O. 4 series scientifically (even though the respondent himself was not doubtful about their being gold and of the purity and value in his voluntary confession in Exhibits P-6 to P-8) the prosecution has overcome the slight hurdle placed by the defence by citing the decision in Assistant Collector C. B. Collect v. V. P. Sayed Mohammed wherein it is contemplated that just on the simple ground that scientific tests were not carried out the assessment was done by a goldsmith testing the metal by a touch stone cannot be brushed aside. This decision of the Kerala High Court reported in (1973 Criminal Law Journal 1551). This is an apt case which would strengthen the case of the prosecution so far as it goes to prove in the indisputed evidence adduced by P.W. 2 that he had been serving the Department for 30 years and was fully experienced in concluding not only whether a metal is gold but also to its purity and that he arrived at the same conclusion to the effect that the contraband seized were gold of 24 carats and that of foreign origin since three of the bits bore the foreign marking "Johnson Methay London 9990-10 Tolas" another gold piece had the marking of 10 tolas and the rest of the 3 bits being the cut ends of the former 3 bits, it is patently evident that the seized metals were of foreign origin and the purity of the said gold was 9990. While such vital clues are available to the origin and purity of the metal, it is very easy for the customs officials to know the weight of the same as they do in their usual course and there could be no strain to ascertain the market value on that particular date which is published in daily newspapers. Hence, no expert or scientific conclusions need be arrived at for ascertaining the above aspect of the contraband.
12. Further no much importance need be attached for expert opinion to decide a case of such nature as one in hand since it is well settled that the expert opinions are neither infallible nor conclusive proofs. Such cases could be decided mostly with materials that are gathered from various sources and circumstances such as the type and colour of the material which is patent, the point at which they were seized the non-production of any valid permit obtained by the accused from the Reserve Bank of India for the transport of the same or being in possession of, and the very admission on the part of the accused as to the nature of import of the materials into the country the non-rebuttal of the type of metal, asserted by the customs officials to be gold, on the part of the accused in his statement and the very status of the person from whom they got seized etc.
13. Moreover, it is not at all the case of the respondent that the seized contrabands the M.O. 4 series were not gold nor of the purity ascertained, nothing contra on the part of the respondent has been validly put forth to disprove that what P.Ws. 1 to 3 say is wrong. Hence the version of the prosecution with regard to their patent assertion of the contraband to be gold, their purity, their weight and value have to be believed to be true. Further more, from Exhibit P-7 confession statement of the respondent he himself has admitted that the contraband seized was gold and only to his knowledge it had been attempted to be smuggled into the country is sufficient evidence to held that the above questions have been answered in favour of the prosecution.
14. With regard to the culpable mental state of the accused as envisaged under Section 138A of the Customs Act. The said section read as follows :
"presumption of culpable mental state -
(1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation : in this section, "culpable mental state" includes intention, motive, knowledge of fact and belief in, or reason to believe, a fact.
(2) For the purposes of this section, a fact is said to be proved only when the court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.
From the reading of the above section along with the explanation it is made clear in no uncertain terms the following dictum of law pertaining to the presumption and the burden of proof so far as a case under the Customs Act is concerned, especially when seizure of the contraband is undoubtedly from the accused.
(i) that the Court shall presume the existence of culpable mental state on the part of the accused and the burden of the accused to prove the fact that he had no such mental state is paramount and heavily cost on him;
(ii) As per the explanation to the above Section, the 'culpable mental state' includes intention, motive, knowledge, belief or reason to believe a fact.
(iii) The standard of proof expected from the accused under such circumstances is beyond reasonable doubt and not preponderance, of probability.
15. In applying the above norms to the case in hand it is evident that no iota of evidence has been placed before the court either by oral or documentary evidence in proof of either the non-existence of the presumed culpable mental state on the part of the accused or in discharge of the burden cast with proof beyond reasonable doubt wherein the onus is heavily cast on the accused by law. In fact, there is no stiff resistance at all offered by the accused with valid evidence or strong circumstances being brought in rebut to the presumption of culpable mental state or to cast off the burden beyond reasonable doubts since they are firmly contemplated in Section 138A of the Customs Act. The accused would only of late simply deny certain things in a light manner.
16. Yet another defence now put forth by the respondent that the respondent was not in conscious possession of the contraband smuggled holds no water in the sense (i) that in Exhibit P-7 it is glaringly admitted that he was explained with the concealment, of the contraband, by one Nazir to be safely handed over to another Basha in Madras. Since Exhibit P-7 is quite admissible in evidence unless on the part of the respondent the contents of the said documents are warded off by valid evidence, and that the accused's burden to prove that he was not in conscious possession has been discharged and validly established with positive evidence, there is no escape for the accused from the clutches of law especially in the light of the fact that the subject matter is an economic offence affecting the economic policy of the state creating imbalance in the financial status of the country. Needless to point out that the accused has miserably failed to satisfy the above inevitable requirements of law.
17. The first Appellate Court does not seem to have attached any importance for this vital aspect of law in all its fairness prior to arriving at the conclusion to acquit the accused. In Bhanabhai Khalpabhai v. Collector of Customs and Another - the Apex Court has gone a step further and has held that with regard to the presumption of culpable mental state, the burden on the accused to displace is so heavy and even once the presumption of culpable mental state is raised, the accused is required to prove as a defence that he did not possess the requisite mental state.
18. Coming to the retracted confession alleged on the part of the respondent and heavily relied upon by the first appellate court to interfere with, the convincing judgment of the trial court even barely dealing with this aspect of law, a confession once made by the accused it has to be viewed with enormous evidentiary value. It is only confession made before the Police or in custody in the presence of Police which cannot be relied upon within the meaning of Sections 25 and 26 of the Evidence Act excepting for the specific purposes of Sections 27 and 32 of the Evidence Act. Barring the above circumstances under which a confession statement has been given with the Police Officer or in the presence of the Police Officer in custody, no other confession made before any authority or prosecuting officials could be viewed with suspicion and they have enormous evidentiary value and conviction could be based on the evidence of such confession statement alone as pronounced in various decisions of the Apex Court. Even law does not admit a refractory version of the confession made before the Customs Officer. In Surjeet Singh Chhabra v. Union of India & Others , it is held that in an unauthorised import of gold - confession by accused before the Customs Officers that though retracted is admissible and hinds the accused since Customs Officers are not Police Officers and there is also no contravention of the principles of natural justice. It is further held that the 'confession before the Customs Officer is admission and retraction cannot be accepted.' 'Where there is confession no need to allow cross-examination of Panch witnesses in view of confession.'
19. In K. I. Pavunny v. Assistant Collector (Head Quarter), Central Excise, Collectorate, Cochin , it is reiterated holding that the appellant therein when he gave confessional statement under Section 108 of the Customs Act was not a person accused of an offence. It is further contemplated therein that 'the appellant while giving statement under Section 108 of the Customs Act, was bound to speak the truth with the added risk of being prosecuted if he gave false evidence.' Threat emanates from the statute and officers merely enforce the law. Held further that 'the officer exercising powers under the Customs Act is an authority within the meaning of Section 24 of the Evidence Act.'
20. It is further held in the same judgment that 'the confession statement under Section 108 even though later retracted is a voluntary statement and was not influenced by threat, duress or inducement etc., and is true one' - 'Confession when retracted has to be tested under Sections 24 to 30 of Evidence Act - Burden is on the accused to prove that confession was made under threat and only if accused is able to prove that it was not voluntary then onus shifts to prove that it was made voluntary.'
21. While such being the position of law, the lower court wasting much of its time in trying to establish that since there is evidence for early retraction of the confession by the accused in his application itself it decided to discard the veracity of the confession statements made by the accused in Exhibits P-6 to P-8 would go to show only its miserable misconception of law since early or delayed retraction is not at all the criterion to decide the evidentiary value of the confession statement made before a Customs Official such as one in the case in hand, especially in the light of the above decisions of the Apex Court.
22. Regarding the defence plea that under Sections 107 and 108 of the Customs Act only by a general or Special order by the Collector of Customs any other Officer may be empowered to record the statement during enquiry, but no such order has been filed by P.Ws 1 to 3 as posed by the respondent is to be decided next.
23. The answer to the above question is that the officers who involved in the whole affair in the above case i.e. P.Ws. 1 to 3 are permanent Officers assigned with such duties as they have indulged in and they are bound to carry out their duties in which there is no special or general order need be necessary in recording the statements during enquiry, the powers now-a-days are delegated to the subordinate officials and the law permits them to act accordingly. Moreover to the allegation the prosecuting officials, P.Ws. 1 to 3 have not been empowered with such investigating powers, no iota of evidence has been produced by the respondent. From the very sanction accorded by the Assistant Collector, Customs, who is fully empowered to deal with such affairs and whose authority to accord sanction is not questioned is patent to the effect that P.Ws. 1 to 3 acted only within their powers given by law. It is also much lamented by the defence that some irregularities have been committed on the part of the Trial Court in framing of the questions under Section 313 of the Code of Criminal Procedure and they were all omnibus in nature. A cursory glance of the questioning under Section 313 would reveal that they have been, to the extent required segregated for each and every deposition of the respective witnesses and the accused questioned with regard to the same. Moreover, such minor irregularities are not going to be the factors to decide the case of the nature i.e. one in hand.
24. In the above case it is not event the version of the defence that the confession statement had been obtained under threat or duress or inducement etc, so as to cast serious doubts on the contents of Exhibits P-6 to P-8. It is not the case of the defence that Exhibits P-6 to P-8 were not given by him at the place, time and in the manner alleged. The only objection was that they were given by the accused according to the dictation of the customs officials.
25. The only plea that was taken in the form of suggesting to the prosecution witnesses is that to the dictation of the Customs Officials the respondent gave statement and it was not voluntary. In view that the confession statement had been allowed to be marked, the burden to prove that it was not voluntarily given by the accused but had been made to the dictation of the prosecuting officials is heavily on the accused to prove with regard to which there is not a single attempt made on the part of the accused and hence the version of the prosecution has to be relied upon in toto.
26. The other objections either being related to the main questions answered or being negligible or flimsy, are not worth considering nor well merited. They have not been given much importance since the main questions in this case have already been answered against the accused and such minor details are not at all going to tilt the balance.
27. Hence, in all the above three main grounds under which the Sessions Court below held that the accused was not guilty of the offence charged, have fallen to the ground and the Court below is not at all justified in arriving at the conclusion to set aside the conviction of the Trial Court and to set the accused at liberty. The Court below should have realised that in the circumstances of the facts of the case and the gravity of the offence, since being an economic offence causing great imbalance in the economy of the country should have restrained itself from interfering with the judgment i.e., the conviction and sentence imposed by the lower Court which is well herited and do not call for any interference at all.
28. The Court below has acted in an unreasonable and arbitrary manner so as to warrant my interference since the judgment of the Court below is vitiated on account of patent error of law and perversity of approach. The first appellate court should have concluded that there was no reason on its part to interfere with the verdict of the Trial Court branding the tall claims of the appellant before it as beating the empty drums and not acceptable in evidence, since no concrete materials worth considering have been placed before the Court below nor any such new circumstance brought forth before it by the respondent.
29. Hence for these reasons the above appeal warrants my interference which is necessarily Called for in the circumstances of the case. In State of Maharashtra v. Champalal Panaji Shah - , it has been well reminded by the Apex Court that no lighter view could be taken with regard to economic since they are susceptible to affect the economy of the country. In my view, even the Trial Court has taken a very lenient view in awarding the sentence on the accused and in fact more rigorous punishment should have been awarded on the respondent as a deterrent measure and unfortunately the appellant/State has not prayed for enhancement of punishment as a result of which I am left with no option but to confirm the judgment of the trial court, the Additional Chief Metropolitan Magistrate, E.O. II, Madras in E.O.C.C. No. 21 of 1988. Consequently, the judgment of the first Appellate Court below in setting aside the conviction and sentence of the Trial Court in Criminal Appeal No. 60 of 1988 passed by the Principal Sessions Judge, Madras is hereby set aside.
30. In result, the appeal is allowed setting aside the judgment of the First Appellate Court i.e. The Principal Sessions Judge, Madras passed in Criminal Appeal No. 60 of 1988 dated 15-11-1988. The judgment of the Trial Court i.e. the Additional Chief Metropolitan Magistrate, E.O. II in E.O.C.C. No. 21 of 1988 dated 22-3-1988 is hereby restored upholding the conviction and sentence passed therein.
31. The lower Court shall forthwith order the arrest of the respondent/accused by issue of such process and remand him to Judicial Custody, immediately after the receipt of the copy of this judgment and report compliance of the same to this Court.