Bombay High Court
State Of Maharashtra vs Chidanand Raghuram Tunga on 16 July, 1990
Equivalent citations: 1991(51)ELT43(BOM)
JUDGMENT
1. These two Criminals Appeals and the two Criminal Revision Applications arise out of the Judgment of the learned Additional Sessions Judge, Pune dated 3-11-1982 in Criminal Appeals Nos. 47 and 48 of 1982 by which the learned Additional Sessions Judge confirmed conviction of all the three appellants before him under Section 135(1)(a) and (b) of the Customs Act, 1962 read with Section 34 of the Indian Penal Code, but modified the Order of sentence by reducing the substantive sentence of imprisonment of one year imposed on them by the trial Court to three months' R.I. each and maintained the sentence of fine of Rs. 1,000/- and in default to suffer R.I. for three months.
2. The prosecution case in brief is as follows :-
On 8-10-1979 at about 11.30 P.M. V. S. Gombi (P.W. 1) Inspector of Central Excise, Pune along with the other officers, intercepted S. T. Bus No. MTD 8274 scheduled from Bombay to Ichalkaranji, near Sategaon on Bombay Agra road. Chidanand Raghuram Tunga (original Accused No. 1) Basavraj Chandrashekhar Chinwar (original Accused No. 2) and Fattu Chandsaheb Patel (original Accused No. 3) were occupying seat Nos. 7, 12 and 33 respectively. The movements of Tunga (accused No. 1) aroused suspicion of the Officers and on being questioned, he denied to have been in possession of any contraband articles. However, during the search of his personal belongings in the presence of Panchas Agarwal [P. W. 4] and Naik 36 wrist-watches, 15 wrist-watch movements and 12 battery cells for electronic wrist watches and one calculator, all notified goods, valued at Rs. 12,970/- were found. Besides the contraband articles, spare parts of Indian make which were used for the concealment of the said goods of foreign origin and one rexine bag used for keeping these goods, were also attached by the Customs Officer. He did not produce any documentary evidence of payment of Customs Duty on the goods. The said goods were seized under a panchanama Exh. 22. The names of Basavraj and Fattu Patel were disclosed. Chinwar [accused No. 2] was found in possession of 8 pieces of fabrics and four pieces of bunions all of foreign origin valued at Rs. 1,425/- and one wrist watch worth Rs. 550/-. Fattu Patel had no luggage but two wrist watches were found with him worth Rs. 5,000/- were found on his person. These two accused also did not produce any documentary evidence showing payment of customs duty or Import documents. The goods were seized under Panchanama [Exh. 24]. The statements of these persons were recorded under Section 108 of the Customs Act. In the departmental adjudication proceedings, the Assistant Collector of Customs and Central Excise, Pune III Dvn. directed confiscation of all the goods seized from the accused and imposed additional penalty on them. After the necessary sanction from the Collector, Customs and Central Excise, Pune, for prosecution of the accused Nos. 1 to 3, the Assistant Collector of Customs and Central Excise filed a complaint against these three accused under Section 135(1)(a) and (b) of the Customs Act.
3. All the three accused pleaded 'not guilty', and contended that they have been falsely involved in the case. They denied that the goods of foreign origin were found in their possession. According to them the goods were seized from one Bepari and were foisted on them.
4. On consideration of the prosecution evidence, the learned Magistrate found that the prosecution proved that all the three acquired possession and were in possession of smuggled goods knowingly or reason to believe that they were notified goods. The learned Magistrate did not rely on the statements of the accused recorded under Section 108 of the Customs Act as he found that they were not made voluntarily. However, an exclusion of the statements did not affect the merits of the case. All the three accused were convicted and sentenced to one year's R.I. and fine of Rs. 1,000/- each. They challenged their conviction and sentence in the Appeals, being Appeal Nos. 47 and 48 of 1982 before the learned Additional Sessions Judge, Pune. The learned Additional Sessions Judge, Pune, found that there was satisfactory evidence on record to conclude that all the three accused were found in possession of the notified goods with requisite knowledge. He did not agree with the learned trial Magistrate that the statements of the accused persons recorded under Section 108 are liable to be excluded as they were not voluntary. The learned Sessions Judge took them into consideration along with other evidence and held that the prosecution has proved against all the three accused and confirmed their convictions, but modified the order of sentence by reducing the substantive sentence of one year to three months, and maintained the sentence of fine as stated above. Aggrieved by the Judgments and order of the learned Additional Sessions Judge, Chidanand Tunga (accused No. 1) has filed Criminal Revision Application No. 525 of 1982 and Fattu Patel (accused No. 2) has filed Criminal Revision Application No. 524 of 1982, and, on the other hand, the State has filed Appeals, being Criminal Appeal No. 90 of 1983 and Criminal Appeal No. 91 of 1983 for enhancement of the sentences. It will be convenient to decide the two appeals and the two Revisions by a common judgment. This judgment will govern and decide them.
5. On the point of seizure of the notified goods from possession of the accused, there is evidence of Gombi (P.W. 1) Inspector of Customs and Central Excise, and Gaikwad (P.W. 3) conductor of the bus and Agarwal (P.W. 4) the Panch. The evidence of these witnesses shows that at about 11.30 p.m. on 8-11-1979, Gombi and other officers intercepted S. T. Bus No. MTD 8274 going from Bombay to Ichalkaranji near Sategaon. It is not disputed that all the accused were travelling by that bus. The evidence further shows that on suspicion Gombi Inspector searched the baggage of Tunga (accused No. 1) and found that he was carrying notified goods i.e. wrist-watches, electronic calculators, cells used for watches etc., of foreign origin. The goods were seized under Panchanama (Exh. 21). So also, some pieces of fabric were found in possession of accused No. 2. We need not discuss the evidence against him because he has not preferred any revision application against his conviction and sentence. Two wrist-watches of foreign origin were found on the person of Fattu Patel (accused No. 3). Out of the two wrist watches he was wearing one and the other one was found in his pocket which was not in working condition. The goods were attached under panchanama (Exh. 24). Agrawal (P.W. 4) one of the passengers who was travelling by the same bus duly prove the Panchanamas Exhibits 21 and 24. The evidence of Gombi about the seizure of noticed goods in possession of accused Nos. 1 and 3 is fully corroborated on all material particulars by Gaikwad (P.W. 3) who was the conductor of the bus. P.W. 1, 3 and 4 are independent witnesses and the accused have not been able to suggest any motive against them, to involve them falsely. So their evidence has been accepted by the Courts below on the point of seizure of the notified goods from possession of the accused persons. In my view, the evidence of these three witnesses corroborated by the Panchanama is sufficient to prove that the accused were found in possession of the goods shown to have been seized from them vide panchanama. Both the Courts below rightly rejected the defence version that the Customs Officers foisted the goods on them. It was suggested that some goods were seized from one Bepari and they were foisted on the accused persons to involve them falsely. There is no material on the record to support the defence version and must be rejected.
6. Mr. Patankar, the learned Advocate for the Petitioners argued that assuming that the watches were seized from Tunga and Patel, there is no evidence to show that they are of foreign origin or smuggled goods. There may be imitation and the watches may be fake foreign material. Unless it is proved that the goods seized from the possession of the petitioners are of foreign origin and there is evasion of duty, the conviction cannot be sustained.
7. I am unable to accept this submission Gombi (P.W. 1) who was an Inspector of Customs and Central Excise, Preventive Branch, is an experienced officer. This was not the first occasion for him to seize smuggled goods. In his evidence he has stated that on examining these watches, he found that they were smuggled. He also stated that he has reason to believe that the watches, calculators and cells were smuggled goods. Accused No. 1 was dealing in wrist-watches and it is not probable that he would purchase fake goods by paying high price. Section 123 of the Customs Act would apply as the goods were seized in the reasonable belief that they are smuggled goods. The burden of proving that they are not smuggled goods would be on the accused persons. The accused have made no efforts to discharge the burden and they were satisfied by taking the plea that the goods were foisted on them to involve them falsely. They could have produced documentary evidence to show that they had purchased the goods from the market or that they were fake. It is true that burden under Section 123 of proving that the goods are not smuggled is not heavy as it is on the prosecution to establish its case and that burden can be discharged by showing preponderance of probability. They have not brought any material on record on the basis of which it can be said that the goods are not smuggled goods. The manner in which they were acting, conduct of the accused during the search, absence of documentary evidence in support of the purchase are relevant circumstances which lead to the inference that the goods are smuggled and they have knowledge about it.
8. In addition to the evidence of the Inspector, Customs and Central Excise Mr. Gombi, the prosecution has relied on the statements of the petitioners (i.e. accused Nos. 1 and 3) recorded under Section 108 of the Customs Act. As mentioned earlier, those statements have not been relied and accepted by the trial Court on the ground that they were not made voluntarily. The learned Session Judge, while disagreeing with the learned Magistrate, has found that those statements can be taken into consideration. It was argued that the Petitioners were detained in custody for a long time which would indicate that the statements were not made voluntarily, but may be outcome of coercion and threats. The circumstance that the Petitioners were in the custody of the Officers of the Customs, for a long time, would not necessarily affect the voluntariness of the statements. They were not retracted by the accused persons when they were produced before the learned Magistrate. It is true that they were retracted at the time of the trial, but that would not make them unlawful. In the statement, the Petitioner No. 1 stated in detail how he purchased the wrist-watches Bombay market from the two shops and about his business in the writs-watches. The statement of Petitioner No. 1 corroborated to the prosecution story about the Petitioners having found in possession of smuggled goods. It is not the case of the Petitioners that the goods were not smuggled or the duty was paid on them.
9. It is not that at the time of the purchase of these watches he made any enquiry about the origin of the goods or that the duty was paid on them. The evidence on record shows that he had reason to believe or knowledge that the goods were smuggled. His conviction under Section 135(1)(a) supported by the evidence on record, must therefore, be maintained.
10. Mr. Patankar strenuously argued that the case against Fattu Patel (original accused No. 3) can be distinguished from the case against other accused. He was found in possession of two wrist-watches. One was not in working condition and he had put on the second wrist-watch on hand. The statement under Section 108 of the Customs Act of Tunga and also of Fattu Patel would show that Patel had accompanied Tunga to Bombay. It would appear that he knows watch repairing but he was not dealing in wrist-watches and had just accompanied Tunga. The persecution evidence shows that Tunga had given him these two wrist-watches and he was to hand over it him on reaching Solapure. It is not the prosecution case that Tunga had purchased these two watches and had given to Patel. The watches did not belong to Patel. He had no dominion or control over them. There is no evidence to show that he was present when Tunga purchased the wrist-watches. In the circumstances, it will be difficult to hold that he was in possession of the smuggled goods within the meaning of Section 135 of the Customs Act. Physical possession of the goods necessarily would not attract the provisions of Section 135, and the prosecution will have to further show the dominion or control of the person from whose person they were seized. That evidence is lacking. Concept of possession is wider and the physical possession alone may not invite criminal liability. Considering the evidence on record, I find that the prosecution evidence is not sufficient to hold that Fattu Patel (accused No. 3) was found in possession of smuggled goods with the requisite knowledge. His conviction is liable to be set aside.
11. Mr. Patankar, the learned Advocate for the Petitioners, argued that the prosecution suffers from valid sanction to prosecute. The sanction to prosecute the accused is accorded by the Collector of Customs Mr. Singh. Subhash Manohar Patwale (P.W. 6) deposed that all the relevant papers were submitted to Mr. Singh at the time of according sanction. Singh had made queries about certain matter when the papers were placed before him and it was after going through the papers the sanction was accorded.
12. The sanction is produced at Exhibit 55. In the opening paragraph, the sanctioning authority has stated that "from the records of the case and from the facts and materials placed before it, it appears that the adequate grounds exist for prosecuting Chidanand Raghuram Tunga, Fattu Chandsaheb Patel and Basavraj Chandrashekhar Chinwar." I am therefore unable to accept Mr. Patankar's contention that there is no application of mind by the sanctioning authority. The evidence of Subhash Patwale [P.W. 6] shows that the record of the case was placed before the Collector of Customs and after perusing the record, sanction was accorded. I therefore do not think that the sanction suffers from any legal defect so as to vitiate the entire proceedings.
13. Mr. Patankar relied on the decision in Mohammed Iqbal Ahmed v. State of A.P. - 1979 Cri.L.J. 633, Which is referred in Om Prakash v. Raniganj Municipality - 1989 Cri.L.J. 1793. In Om Prakash's case, it is observed that :-
"In view of this catena of earlier decisions of our apex Courts, pre-independence as well as post-independence, we take the law to be that all that is necessary to show is that all the relevant facts consisting the offence were placed before the concerned authority before it granted sanction. And once that is shown to have been done, then we would like to think that application of mind by, and satisfaction of, the authority concerned should be presumed, unless, as already indicate, it becomes manifest that there was and could in fact be no such application and satisfaction."
In the present case the facts disclosed that necessary material was placed and taken into consideration by the authority before giving sanction.
14. The State has filed Appeals for enhancement of the sentence. The incident occurred on 8-11-1979. The case was decided by the trial Court on 19-2-1982 and the Appeals were disposed by the Sessions Court on 3-11-1982. During the adjudication proceedings a penalty of Rs. 1,000/- was imposed on Petitioner Tunga in addition to the confiscation of the goods. Mr. Patankar made a grievance that even the spare parts which are not notified goods or of foreign origin have been confiscated by the Customs Authority. There is some substance in the argument, but that question cannot be gone into in this revision for which separate remedy was available to them. Mr. Patankar submitted that the petitioner Tunga, after the incident, has not indulged in any such activities. Mr. Kothari, the learned Additional Public Prosecutor, argued that there was evasion of the customs duty and therefore the sentence imposed on the accused should be enhanced. Considering the facts and circumstances of the case, I do not think the case for enhancement of the sentence is made out. Mr. Patankar submitted that the Petitioner Tunga was in jail for about seven days after dismissal of the Appeal and the substantive sentence may be reduced keeping in view that there have been no adverse reports against him after the incident. In these circumstances, I think that the purpose will be served if the sentences imposed on the Petitioner Chidanand R. Tunga is reduced and fine imposed on him is raised.
15. In the result, I pass the following order :
The Criminal Revision Application No. 525 of 1982 filed by Chidanand R. Tunga is partly allowed. His conviction under Section 135(1)(a) & (b) of the Customs Act is maintained. The Order of sentence passed by the learned Additional Sessions Judge, Pune, is however, modified by reducing the substantive sentence of three months to the sentence already undergone. The amount of fine imposed upon him is, however, raised from Rs. 1,000/- to Rs. 5,000/- The sentence in default of payment of fine is maintained. Criminal Revision Application No. 524 of 1982 filed by Fattu Chandsaheb Patel is allowed. His conviction and sentences under Section 135(1)(a) & (b) are set aside. Fine, if paid by him, should be refunded to him.
16. The Criminal Appeal Nos. 90 and 91 of 1983 filed by the State for enhancement of the sentence are dismissed.