1971 (12) TMI 120 - HC - Customs

Summary

Issues Involved:
1. Legality of the arrest and seizure by the police officer.
2. Admissibility and credibility of witness testimonies.
3. Admissibility of the respondent's statements before the Customs authorities.
4. Proof of the gold being foreign and smuggled.
5. Legality of the respondent's acquittal by the Additional Sessions Judge.

Detailed Analysis:

1. Legality of the Arrest and Seizure by the Police Officer
The Station House Officer (SHO) of Kotwali Police Station received credible information and consequently arrested the respondent and seized 17 bars of gold from his possession. The respondent argued that the SHO should have informed the Customs authorities, and the arrest should have been under Section 54 of the Criminal Procedure Code (CrPC). The court analyzed whether the SHO had the authority to arrest without a warrant under Section 54(1) CrPC, specifically under its fourth clause, which allows arrest if the person is found with suspected stolen property. The court concluded that while the SHO had the power to seize the gold under Section 550 CrPC, the arrest might not strictly fall under Section 54 CrPC. However, any irregularity in the arrest did not vitiate the trial.

2. Admissibility and Credibility of Witness Testimonies
The prosecution presented ten witnesses, but only two supported the prosecution's story. The Additional Sessions Judge had disbelieved Chandu Lal due to his delayed statement and possible enmity with the respondent. The High Court, however, found that Chandu Lal's testimony, along with that of Bk. Damodar Dass and Raghunath Prasad, was credible. The court noted that Raghunath Prasad had initially supported the prosecution but later retracted, likely due to being influenced by the respondent. The court emphasized that the recovery of gold was made in the respondent's presence, and he did not initially deny ownership of the bedding.

3. Admissibility of the Respondent's Statements Before the Customs Authorities
The respondent's statements to the Customs authorities, where he admitted the recovery of gold, were considered admissible. The court cited precedents indicating that statements made to Customs officers are not inadmissible under Section 25 of the Evidence Act, as Customs officers are not considered police officers. The court rejected the Additional Sessions Judge's view that the respondent's retraction diminished the evidentiary value of his initial admission.

4. Proof of the Gold Being Foreign and Smuggled
The prosecution provided evidence that the gold bars bore foreign marks and were of 24-carat purity, which is not available in the local market. The court noted the prohibition on the import of gold bullion without Reserve Bank of India permission and concluded that the respondent's possession of such gold indicated it was smuggled. The court found the evidence sufficient to establish that the gold was foreign and smuggled.

5. Legality of the Respondent's Acquittal by the Additional Sessions Judge
The High Court found that the Additional Sessions Judge had erred in acquitting the respondent by not properly considering the admissible evidence and credible witness testimonies. The court emphasized that the judgment of acquittal could be reversed if it was found to be perverse or if the evidence warranted a different conclusion. The court held that the evidence against the respondent was compelling and justified a conviction.

Conclusion:
The appeal was accepted, and the judgment of acquittal was reversed. The respondent was convicted under Section 135(b) of the Customs Act and Rule 126P(ii) of the Defense of India Rules, and sentenced to rigorous imprisonment for six months and a fine of Rs. 500, with an additional three months of rigorous imprisonment in default of payment.