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TMI Blog1985 (2) TMI 47X X X X Extracts X X X X X X X X Extracts X X X X ..... The customs officers along with two panch witnesses started in a Government jeep and kept a watch from a place near Sapna theatre situated on Karkhej road and at about 3.45 P.M. they noticed a yellow coloured scooter followed by a white Ambassador car coming from towards Ahmedabad side and going towards Saurashtra side on National Highway No. 8A, and thereupon they followed the said vehicles in the jeep and after going beyond the railway crossing near Sarkhej village, they found the person who was driving the scooter and the person who was the sole occupant of the Ambassador car talking with each other near the Ambassador car which was stopped on the way. The customs officers found that the Ambassador car was bearing No. MBE 648 while the scooter was having No. GRA 2351, and therefore, interrogated these two persons. The person who was driving the scooter disclosed his name as Narendra Kantilal Shah, while the person who was driving the Ambassador car disclosed his name as Mahesh Kantilal Soni. On searching the car, they found several silver slabs lying under the front and rear seat of the said car in addition to some silver slabs lying in the dicky of the said car, which was opene ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... same way in which he would do while considering whether the accused should be convicted or acquitted. Section 245 of the Code of Criminal Procedure, 1973 provides that if, upon taking all the evidence referred to in Section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. If there is some evidence on record which, if accepted, would warrant a conviction of the accused, the accused cannot be discharged. The question whether particular evidence should be accepted or not arises only at the end of the trial and not at the stage of considering whether the accused should be discharged. Bearing in mind these provisions of Section 245 which pertain to discharge, let us consider whether the learned Chief Judicial Magistrate was right in his conclusion that no case has been made out which, if unrebutted, would warrant conviction of the accused. It may be mentioned at this stage that the say of the accused is that of total denial. They do not explain as to how the silver was found from the car which was driven by one of the respondents, as allege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s called at the shop of Narendra at about 2 to 2.30 P.M. He brought his scooter and thereafter he, i.e., Mahendra left for Bavla on scooter. He states therein that near railway crossing near Sarkhej, the customs officers apprehended them and they took them to the Customs Office along with the car bearing No. MBE 648. He stated therein that he had no concern with the silver which was found from the car and he had also no concern with the car. He was questioned as to what he had to say in connection with the case that Narendra Kantilal Shah was on the scooter piloting the car which he was driving and he replied that he was sitting on the scooter which was driven by Narendra and he had not driven in car. This is the statement of this Maheshkumar Kantilal Soni. 6. The discussion made above will go a show that the evidence of Ajaypalsinh and the statement. Ex. 7 of Maheshkumar Kantilal Soni go to show that Maheshkumar Kantilal Soni and Narendra Kantilal Shah knew each other very well and that they were found going on the scooter and car respectively on 6th February, 1983 towards Sarkhej and after going beyond railway crossing near Sarkhej, they stopped the vehicles and when they were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ded by the Assistant Collector of Customs that a prima facie case is made out about preparation to commit an offence of exporting silver. The Ambassador car was proceeding towards Sarkhej. It stopped only after it had crossed the railway crossing near Sarkhej. That road leads to Bavla, and further, to Saurashtra and Kutch. The bifurcation to Gandhinagar is on the Ahmedabad side of Sarkhej Railway crossing. The respondents do not offer any explanation about the presence of silver in the car which was proceeding in that direction. In view of this, prima facie it can be said that these respondents were taking silver towards Saurashtra or Kutch sea coasts for exporting the same out of India. 9. The learned advocate Mr. B.C. Patel for the respondents-accused drew my attention to a decision of the Supreme Court reported in Malkiat Singh v. State of Punjab, AIR 1970 S.C. 713 in support of his submission that no case is made out even for preparation against these two respondents. Now, the Supreme Court was considering the case relating to an offence punishable under the Essential Commodities Act. Preparation to commit an offence is not punishable under the said Act but attempt to commit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court came to the conclusion that on the material which was on record, the offence of attempt was not established. The learned advocate Mr. B.C. Patel, however, relied upon the decision of the Supreme Court in the case of Nasu Sheikh (supra) in support of his submission that the customs officers have given evasive replies on certain questions and therefore, their evidence is not acceptable. As stated by me a little earlier, the appreciation of the evidence of these officers vis-a-vis their omission to give replies to certain questions is a matter to be considered at the time of appreciating the evidence at the end of the trial and not at this stage. In view of this position, the decision of the Supreme Court is also not of much assistance at this stage. 11. In the case of Chaturi Yadav v. State of Bihar AIR 1979 S.C. 1412, the question was whether on the material which was on record, inference could be drawn that the accused had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The Supreme Court observed in that case that the possibility that the appellants might have collected for the purpose of murdering somebody or commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration is made an offence and if we bear in mind that distinction, then certainly, prima facie, we can say that the respondents made preparation to export silver in contravention of the provisions of the Customs Act. 13. Now, as I stated a little earlier, it is not sufficient for the prosecution to make out a case for preparation. The prosecution has to further make out a case that the circumstances are such that a reasonable inference can be drawn that if not prevented by circumstances independent of his will, the person accused of the offence is determined to carry out his intention to commit the offence. Now, the words used are "reasonably inferred". This aspect has not been considered by the learned Chief Judicial Magistrate. When I drew the attention of the learned Standing Counsel Mr. S.R. Shah to this second aspect of Section 135A, he drew my attention to Section 138A of the Customs Act. It will be proper to reproduce the said section which reads as follows : "(1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the court shall presume the existence of such mental state but it shall be a defence for the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. The respondent Narendra Kantilal Shah in his statement recorded on 6th February, 1983 has stated, after referring to the circumstances in which they were proceeding in that direction, that Maheshbhai proceeded ahead in the Ambassador car and he followed the car on the scooter and after they went beyond the railway crossing of Sarkhej, two customs officers came on a scooter and the scooter was taken ahead of the car and, therefore, the car was stopped and the scooter was also stopped and the key of the Ambassador car was taken by the customs officers and they were stopped there, etc. This statement may not assume much importance because the customs officer Ajaypalsinh does not say so. His evidence shows that the vehicles, i.e., the car and the scooter were stopped without their intervention. Now, the learned advocate Mr. B.C. Patel urged that the fact that the scooter and the car were stopped without any intervention by anyone shows that it cannot be said that the respondents were determined to carry out their intention to commit the alleged offence. Now, why the two vehicles were stopped after going beyond the railway crossing near Sarkhej was best known to the two respondents a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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