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TMI Blog1967 (4) TMI 197X X X X Extracts X X X X X X X X Extracts X X X X ..... d Preventive Officers Ranade, Thakur and Menon. It was stated in the warrant that there were reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the proceedings were secreted in the shop. The officers were accordingly charged with the duty to search and seize such prohibited and dutiable goods, documents and things in the shop under S. 110 of the Act. The search was effected and the goods above mentioned were seized. Some of the watches were returned as they were old and given for repairs. The other watches were seized. Proceedings for the confiscation of the goods and for penalties were started by Dutta and a summons under s. 108 of the Act was issued to Govani. He could not prove that the goods had borne the necessary customs duties. The Additional Collector of Customs, Bombay thereupon sanctioned his prosecution under S. 135(b) of the Act. The trial took place before the Presidency Magistrate (19th Court), Bombay. Govani was charged on two counts, under. 135(a) and S. 135(b) of the Customs Act, 1962. Two witness- es were examined at the trial. Preventive Officer, Customs, Ranade deposed to the seizure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nment and a fine of ₹ 2,000/- (in default, further rigorous imprisonment for six months) on each of the two counts. The watches were also ordered to be confiscated. Govani appealed to the High Court. His main contention was that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The High Court rejected these contentions and accepting the testimony of the witnesses on facts, upheld the conviction. Govani now appeals to this Court by special leave. The grant of special leave is limited to the questions whether the evidence of Dutta was improperly received by the Magistrate and whether, if excluded, the conviction of Govani can be supported. The question falls to be considered under s. 540 of the Code ,of Criminal Procedure. That section is to be found in Chapter 46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous'. It provides : " s. 540 : Any Court may, at any stage of any inquiry, trial or other proceeding under this Code, summon any person as a witness, or examine any person in attendance, though not summoned as a witness, or recall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge (S. 254), recording of the plea (S. 255) and the defence (S. 256) of the accused and as Govani did not wish to lead evidence. (S. 257), it had reached the stage of s. 258 and the court could either acquit or convict him. It is, therefore, submitted that the Magistrate had really allowed the prosecution to fill a gap in the case which had the effect of dispensing with the burden which was on the prosecution to prove the case under S. 135 (a) and (b) of the Customs Act and of placing the burden upon Govani to rebut the presumption that the goods were smuggled. This, it is said, is not only unfair but unjust and cannot be regarded as falling within the powers of the court, however, wide the language of the section. We shall consider these objections and refer to the rulings which were cited before us in support of them. To begin with, we do not accept as sound the argument that Chapter 21 must limit the powers under s. 540. Offences under .he Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and rant cases by Magistrates, trials before High Courts and Courts of Session and summary trials. All these trials have t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason why that matter which so arose ex improviso may not be answered by contrary evidence on the part of the Crown." (Reg. v. Frost)( 4 St. Tr. (N.S.) 85 at 386.). There is, however, the other aspect namely of the power of the Court which is to be exercised to reach a just decision. This power is exercisable at any time and the Code of Criminal Procedure clearly so states. Indeed as stated by Avory J. in Rex v. Dora Harris([1927] 2 K.B. 587 at 594.) : "The cases of Reg. v. Chapman (8 C & P. 558) and Reg. v. Holden (8 C & P. 606) establish the proposition that the presiding judge at a criminal trial has the right to call a witness not called by either the prosecution or the defence, if in his opinion this course is necessary in the interests of justice. It is true that in none of the cases has any rule been laid down limiting the point in the proceedings at which the judge may exercise that right." However the learned Judge points out that injustice is possible unless some limitation is put upon the exercise of that right and he adopts for that purpose the rule laid down by Tindal, C.J. in Reg. v. Frost(4St. Tr. (N.S.) 85 at 386) even in those cases where a wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and the condition laid down in Reg. v. Frost(4 St. Tr. (N.S.) 85 at 386.) Dora Harris and Reg. v. Frost cases involved rebuttal of the defence evidence. In neither case was there any unexpected move by the prisoner and the evidence was therefore, wrongly admitted. It is difficult to limit the power under our Code to cases which involve something arising eximproviso which no human ingenuity could foresee, in the course of the defence. Our Code does not make this a condition of the exercise of the power and it is not right to embark on judicial legislation. Cases that go that far are of course not quite right. Indeed they could be decided on fact because it can always be seen whether the new matter is strictly necessary for a just decision and not intended to give an unfair advantage to one of the rival sides. Even in England where the rule in Dora Harris(5) case obtains, the powers of the Court have not been held to be wrongly exercised, when fresh evidence has been let in for a just decision. In William Sullivan((1922) 16 Cr. App. R. 121.) rebutting evidence was held to be properly called when the accused put forward a suggestion which could not have been foreseen and in John Mck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in acquittal. The Magistrate and the High Court were of opinion that these circumstances might lead to a reasonable belief in the mind of the person seizing the watches, that they were smuggled. The prosecution examined Ranade, Prevention Officer, Customs who had assisted at the search but failed to examine Dutta who seized the watches and under whose direction the search was conducted. The question was why were the watches seized ? They were obviously not seized because they were stolen property or belonged to some other person. They were seized after search on a warrant which expressed the belief that they were smuggled and after affording Govani an opportunity by notice to explain his possession. It is obvious that the just decision of the case required a finding whether they were smuggled or not. The circumstances already deposed to by Mukund Ranade and otherwise on the record clearly established that someone must have seized the watches entertaining a belief that they were smuggled. This belief obviously was entertained by Dutta. This was not a case in which the prosecution was trying to fill a gap in the pro- secution case. The court was right in thinking that a just decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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