1970 (1) TMI 29 - SC - Customs

Whether the two bags had been thrown from the flat of Chokshi or from the flat of any of the other tenants of the building and who could have thrown them? Held that - It was obvious that whoever threw the bags had reasons to hide the gold at least temporarily while the search was going on. Chokshi naturally denied that he had thrown these bags, but he admitted that the other bag which was found in the balcony of Mody s flat was his. His explanation was that Chandchankar had probably thrown the gold since he was making enquiries about the price of gold from him. He admitted that the slips of papers on which the amount of gold was written were in his handwriting but he said that he had written them to find out the price of gold which presumably Chandchankar had for sale. All this clearly demonstrates that it must have been accused Chokshi who was responsible for throwing the bags. By throwing the bags he cannot get rid of the possession of gold which under the law makes him responsible under the Gold Control Act and the Customs Act. The High Court and the Presidency Magistrate righlty believed the prosecution case and have deduced on circumstantial evidence that it must have been Chokshi who threw the bags from the window of his lavatory at the back of the flat since it was directly above the place where the bags had fallen and in the course of falling has killed a pigeon nesting there. They disbelieved the version of Chokshi that it was Chandchankar who could have thrown the gold. The reasons given by the High Court in support of accepting the prosecution version are very convincing and, in fact, they leave no room for doubt whatever. Appeal dismissed.

Summary

Issues:
1. Conviction under Rule 126P(2)(II) of the Defence of India Rules and Section 135(ii), read with Section 135(b) of the Customs Act.

Analysis:
The appellant was convicted under Rule 126P(2)(II) of the Defence of India Rules and Section 135(ii), read with Section 135(b) of the Customs Act by the Additional Chief Presidency Magistrate, 8th Court, Bombay. The appellant was sentenced to nine months rigorous imprisonment and a fine of Rs. 2,000/- for each offence. The High Court of Bombay confirmed the convictions and sentences on appeal. The issue at hand involves the legality and validity of the convictions under the mentioned rules and sections.

Chokshi was accused of residing in a flat in Bombay where a search was conducted by the Excise Department officials. The search revealed incriminating evidence, including gold slabs and currency notes, which led to the prosecution under the Gold Control Order and the Customs Act. The key question in this case was whether Chokshi was responsible for throwing two bags containing gold from his flat or if they were thrown by someone else. The circumstantial evidence pointed towards Chokshi's involvement in the act, as concluded by the High Court and the Presidency Magistrate.

The prosecution's case relied on circumstantial evidence to establish that Chokshi was the one who threw the bags from his flat. The High Court found the prosecution's version convincing and conclusive, ruling out the possibility of other individuals, including Chokshi's family members, being responsible for the act. The evidence, including the matching weights of the gold pieces and written accounts, supported the conclusion that Chokshi was the one who disposed of the gold illegally.

Despite arguments of discrimination and unfair treatment under the Gold Bond Scheme, the Court dismissed these contentions, emphasizing that prosecution for possessing undeclared foreign gold was justified under the law. The Court rejected claims of discrimination, stating that prosecution of one individual does not constitute discrimination, even if others may have evaded prosecution for similar offences. The appeal was consequently dismissed, affirming the convictions and sentences imposed on Chokshi.

In conclusion, the judgment upheld the convictions of the appellant under the Defence of India Rules and the Customs Act, based on the compelling circumstantial evidence that pointed towards his involvement in disposing of undeclared gold. The Court rejected claims of discrimination and affirmed the legality of prosecuting individuals for possessing foreign gold without declaration, ultimately dismissing the appeal brought by Chokshi.