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TMI Blog1971 (12) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... (4) The appellant has now come up to this Court in appeal for reversal of the judgment of acquittal passed by the learned Addl. Sessions Judge. (5) The facts are that on 8-11-1964 the Station House Officer Kotwali, Chandni Chowk Delhi received information and in consequence of that information he posted himself at the crossing of Jogiwara and M.aliwara, Nai Sarak Delhi. After some time he found a taxi from which the respondent alighted along with another person and as a result of the search of his bedding in the presence of witnesses 17 bars of gold weighing 10 tolas each bearing foreign marks were recovered from the shoulder pads of a woolen coat found in the said bedding. On search of his person a sum of ₹ 31.00 and a bill No. 16140 dated 31-10-1964 and a letter-head of Messrs Kasturi Lal and Co. Bombay containing some accounts in Hindi and a mention of 17 bars of gold were recovered from the respondent in the presence of the said witnesses. (6) The property was handed over to the Customs authorities who also held proceeding under the Customs Act after an order was obtained from the Addl, District Magistrate Iii Delhi. Ultimately the Assistant Collector of Customs fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge that Prakash Lal and Ramji Dass who had attested the recovery memos had resoled from their statements and cross-examination by the complainant's counsel did not bring out any material from which it could be inferred that their earlier statements should be preferred to their deposition in Court. The testimony of these witnesses will have to be discarded and the case against the respondent will have to be judged in the light of evidence of Bk. Damodar Dass, Raghunath Prasad and Chandu Lal. (9) We have already said that Raghunath Prasad supported the prosecution ca.se in his evidence-in-chief. His cross-examination was however deferred and he was cross-examined on 3-11-1967 after a delay of 13 days when he went back on his evidence-in-chief and deposed that the clothes and other articles were lying on the ground when he reached there. He was shown his previous statement before the Customs (Ex. PW4/A) and he admitted that it was in his own hand but he said that some portions of that statement were not correct. He also stated that he did not know that the bedding and the attached case belonged to whom, but he added that gold had come out of one of the shoulder pads of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade a report in the daily diary. On 11-1.1-1964 he handed over the property to Shri P. L. Bhatia, Inspector Customs (Preventive) after informing him about the details of the case. (12) The defense set up by the respondent in his examination under section 342 Criminal Procedure was that during communal riots Damodar Dass had arrested him and Chandu Lal had been made a false witness. He also stated that Damodar Dass had once tried to enter his house forcibly along with Chandu Lal. Chandu Lal was living in the house of the respondent and was arrested and convicted for gambling at the instance of the respondent. Bk. Damodar Dass and Chandu Lal were pushed back and the respondent refused to allow Damodar Dass to carry out the search. He further stated that Chandu Lal had black-mailed his uncle and was receiving ₹ 50.00 per mensem from him four years ago. (13) In support of his defense, the respondent examined Suraj Prakash (DW3) who stated that about four years ago Bk. Damodar Dass and his three or four companions who were not in uniform, had come there and conducted a search in the house of the respondent. Suraj Prakash and Goverdhan Dass CDW4) were called and a search was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Messrs Kasturi Lal and Co. Bombay which contained some accounts in Hindi and a mention of 17 bars of gold, was recovered from the respondent. In this state of evidence, there was no question of the respondent being arrested under Section 54 Criminal Procedure Code because that section had hardly any application to the facts of the present case. (18) Prima facie the argument presented by the learned counsel for the respondent appeared attractive and we asked the counsel for the parties to cite authorities as to whether Section 54 Criminal Procedure Code empowered the police officer to arrest a person without an order from a magistrate and without a warrant. Counsel for the appellant referred to the first and fourth clauses of Section 54(1) Criminal Procedure Code which read as under :- 54(1)Any police-officer may, without an order from a Magistrate and without a warrant, arrest-first, any per- son who has been concerned in any cognizable offence or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; fourthly, any person in whose possession anything is found which ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the purview of the first clause of S. 54(1) of the Code. The question however is whether it does come under the purview of the fourth clause of Section 54(1) ? The authority from Kerala High Court therefore does not go to the length of invoking Section 54 of the Code of Criminal Procedure as it was confined only to the operation of Section 550 of the Code. (19) Counsel for the appellant also cited a decision by a Single Judge of Gujarat High Court in Superintendent Customs and Central Excise Vapi v. Raichand Lakhsman singh Shah, . We however do not find if that authority can be of any use to the argument of the learned counsel, hi that case a police officer had seized vehicle and the goods carried on it and conveyed the same to the Customs house. Subsequently the same were seized by the Customs officer in exercise of his powers under Section 110 of the Customs Act on the ground that the goods which were carried in the vehicle were smuggled goods. The question before the Court was whether a magistrate could order the Superintendent of Customs and Central Excise to return the vehicle to a person who claimed to be the owner of it on condition of his giving security and undertakin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut he did not have the power to arrest the respondent under Section 54 of the Code. But a mere irregularity in the a.i'rest of the respondent would nevertheless not vitiate the trial. (23) Counsel for the respondent submitted on the other hand that in a decision of Bombay High Court in Candri Bawoo v. Emperor Atr 1925 Bombay 131, a police officer who was not specially authorised by the Commissioner of Police as required by the Bombay Prevention of Prostitution Act, 1923 could not arrest a woman under Section 10(1) without a complaint under Section 3 of the Act. It was held that the magistrate had no jurisdiction under Section 190 of . the Code of Criminal Procedure to try a woman so wrongly arrested for the offence unless a complaint within the meaning of Section 4(l)(h) was made to him. It would appear that in that case the magistrate had no real jurisdiction and therefore it was not a case which fell within the scope of mere irregularities dealt with in Section 537 of the Code of Criminal Procedure. In the present case the trial of the respondent has proceeded on a complaint filed by the Assistant Collector of Customs and therefore though the original arrest of the respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ouse Officer Kotwali Police Station, that would by no means vitiate the trial. (27) We now turn to the evidence of Chandu Lal (Public Witness 7). Harbans Lal (Public Witness 9) mentioned that the name of the informant was to be found in the list of witnesses cited by the complainant. defense witnesses have stated that Chandu Lal was a police tout. He has been moving about in the company of Bk. Damodar Dass. He is also stated to be addicted to Satta and gambling and was residing in the same building in which the respondent was residing. It may be that Chandu Lal was a police informant although neither Bk. Damodar Dass nor the complainant A. L. Nanda admitted this fact. In fact no such questions were put to them. The question however is whether he was present at the time when the respondent was arrested and a search was carried out by Bk. Damodar Dass. For this we have to turn to the statement made by the respondent himself before Shri S. M. Raza, Superintendent of Customs and Central Excise. According to the evidence, the respondent was examined by the Customs authorities on 12-11-1964 and 13-11-1964. These statements are Exhibits PW9/A and PW9/B. In Ex. PW9/B the respondent made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e from Bombay on 8-11-1964 and had alighted from a taxi near his house, Chandu Lal was probably aware of what had taken the respondent to Bombay. His being a police informant, is therefore a circumstance that supports the truth of the prosecution case because it was on the basis of the information received by Sho Kotwali that the latter was waiting at the crossing of Jogiwara and Maliwara. Chandu Lal may be addicted to gambling and satta but it is persons of that type who know about the movements of others who are engaged in transactions of a shady nature like smuggling of gold. If he was an enemy of the respondent, it was because of that enmity that he informed the police against him. Enmity is a double edged weapon. It can cut both ways. It is the enemy who alone can expose the other man engaged in a business of shady character. (30) We have therefore no hesitation in. relying upon the testimony of Chandu Lal. More so, when that testimony lends an assurance to the evidence of Bk. Damodar Dass and Raghunath Prasad. (31) It was contended on behalf of the respondent that according to Bk. Damodar Dass, there was another person who also alighted from the taxi. He went away. It w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above mentioned statements (Exs.PW9/A and PW9/B) which were in his hand but they were recorded before Mr. P. L. Bhatia. We have seen the original statements. They were written in Hindi and are in the handwriting of the respondent himself and have been made before Shri S. M. Raza, Superintendent Customs. (34) The statement made by the respondent in Ex.PW9/A in which he admitted the recovery of gold from him and which has already been re-produced above is admissible in evidence. Under Section 108 of the Customs Act, 1962 whenever a person is examined by an officer of Customs holding a certain status it is his duty to answer truthfully all the questions put to him. Such a statement is not hit by Section 25 of the Evidence Act and is admissible in Evidence. A Full Bench decision of Madras High Court in Collector of Customs v. Kotumal Ghirumal Pihlajani and others , fully supports that view. The decision of the Supreme Court in Ramesh Chandra Mehta v. State of West Bengal etc. , also shows that a Customs Officer is under the Customs Act of 1962,. not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding to the prosecution the bed was lying on the road and if gold was recovered from the coat inside the bedding, the incriminating article could no be said to be in the possession or control of the respondent. The above decision has no relevancy at all. According to the prosecution, the bedding was removed from the taxi by the respondent. He did so after paying the taxi fare and he was seen doing so by the Sho Kotwali and other witnesses. It cannot therefore be said that the bedding was not in the possession and control of the respondent. (38) Counsel for the respondent then referred us to the evidence of Ram Prakash (DW6). The coat from which gold was recovered bore the label Prem Tailors . He deposed that the firm belonged to him. He had two shops, one in Chandni Chowk and the other on Nai Sarak. He stated that he did not know the respondent and had not sewn any coat for him. He however stated that he knew Satya Narain who was dead and that Satya. Narain used to get coats sewn from him several times. He deposed that the coat did not belong to the respondent and he had told the Customs department about it. In cross-examination he admitted that he had not mentioned the name of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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