1973 (10) TMI 30 - SC - Customs

Whether the finding that the appellant was in possession of the gold bars with foreign markings recovered from his shop and of indigenous gold recovered from his residential premises cannot be sustained? Held that - The shop from where the gold was got belongs to the accused s business and there is evidence for it. The bars themselves bear on their bosom evidence of smuggled source in the shape of foreign markings. The circumstances of the recovery not merely deepen the suspicion but clinch the conclusion. The guiltless pillows on which the appellant confidently sat, hid the offending gold and the pre knowing officers uncovered the contraband with a sure instinct and these facts over-power the case of licit possession feigned by the accused. The disingenuous explanation regarding the domestic discovery of gold also is hardly plausible. We affirm the findings of fact. There is no manner of doubt that the accused was in control of the indigenous gold recovered from his residence and there is no case that a declaration has been made regarding it. That at least this domestic gold was subject to the declaration of Rule 126P(2)(ii) can be spelt out without straining language. Its possession is clearly an offence, as held by the courts below. The provision is plain that an authorised Customs official is entitled to examine any person at any time, at any place, in the course of an enquiry. Whether the statement was extracted by threat of harm, hope of advantage or improper inducement does not concern us as no such case is made out. Ex. 9 has been found by the High Court to be free from taint. We are not disposed to differ. Appeal dismissed.

Summary

Issues Involved:

1. Possession of gold bars with foreign markings and indigenous gold.
2. Examination of the appellant under Section 107 of the Customs Act, 1962.
3. Applicability of Rule 126-P(2)(ii) of the Defence of India Rules, 1962 to smuggled gold.
4. Admissibility and reliability of the statement recorded under Section 107 of the Customs Act.
5. Sentencing considerations for white-collar crimes.

Issue-wise Detailed Analysis:

1. Possession of Gold Bars with Foreign Markings and Indigenous Gold:

The appellant contested the finding that he was in possession of the gold bars with foreign markings and the indigenous gold recovered from his residential premises. Both the trial court and the High Court concluded that the appellant was indeed in possession of the gold bars and indigenous gold. The Supreme Court found no cogent reason to interfere with this concurrent finding of fact based upon the appreciation of evidence and therefore rejected the appellant's first contention.

2. Examination of the Appellant under Section 107 of the Customs Act, 1962:

The appellant argued that the Customs officer could not examine a person under Section 107 of the Customs Act, 1962 if that person was subsequently arraigned as an accused. The Supreme Court found no merit in this contention, stating that the language of Section 107 is clear and unambiguous. The term "any person" includes a person who may subsequently be put up for trial. The Court emphasized that the examination under clause (b) of Section 107 is of a person acquainted with the facts and circumstances of the case, and there is no valid reason to exclude such a person from the purview of Section 107.

3. Applicability of Rule 126-P(2)(ii) of the Defence of India Rules, 1962 to Smuggled Gold:

The appellant contended that Rule 126-P(2)(ii) of the Defence of India Rules, 1962 could not apply to smuggled gold. The Supreme Court disagreed, stating that Rule 126-P(2)(ii) penalizes a person who has in his possession or under his control any quantity of gold in contravention of any provision of Part XII A of the Defence of India Rules. The Court held that the language used in the rule is wide enough to include smuggled gold and that exempting smuggled gold would stultify the law.

4. Admissibility and Reliability of the Statement Recorded under Section 107 of the Customs Act:

The appellant challenged the reliability and admissibility of the statement recorded under Section 107 of the Customs Act, arguing that it was elicited under testimonial pressure and personal duress. The Supreme Court noted that the appellant's counsel conceded that the statement was not a confession within the meaning of Sections 24 and 25 of the Indian Evidence Act. The Court found that Section 107 of the Customs Act is designed to facilitate the investigatory process and that the term "any person" in the section includes suspects and potential accused. The Court affirmed the High Court's finding that the statement (Ex. 9) was free from taint and held that it was admissible and reliable.

5. Sentencing Considerations for White-Collar Crimes:

The appellant's counsel argued for a merciful sentence, citing the confiscation of gold, the appellant's exit from business, the long duration of criminal proceedings, and the appellant's promise to reform. The Supreme Court rejected this plea, emphasizing the seriousness of social and economic offences. The Court noted that such crimes have a severe impact on the nation's economy and that lenient sentences would not serve as an effective deterrent. The Court affirmed the sentence, stating that incarceration is particularly potent for professional economic offenders and that the offences committed by the appellant warranted a strict punishment.

Conclusion:

The Supreme Court dismissed the appeal, upholding the findings of fact and the sentence imposed by the lower courts. The Court emphasized the importance of strict enforcement of laws against economic offences and the need for deterrent punishment to curb such crimes.