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TMI Blog1979 (1) TMI 113X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by the learned trial Magistrate and upheld by the High Court are set aside and he is acquitted of the charge in its entirety - 196 of 1973 - - - Dated:- 30-1-1979 - S. Murtaza Fazal Ali and A.D. Koshal, JJ. [Judgment per : Koshal, J.]. - This appeal by special leave is directed against the Judgment dated 7th August 1973 of the Bombay High Court upholding the conviction of Sevantilal Karsondas Modi (the sole appellant before us) for an offence under Section 120B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of Section 135 of the Customs Act 1962, and a sentence of rigorous imprisonment for a year recorded by the Chief Presidency Magistrate, Bombay. 2. The appellant was one of 30 accused persons against whom the police initiated proceedings in the court of the trial Magistrate. Out of them, accused Nos. 28 to 30 were not tried as they had absconded and could not be apprehended. The case against accused Nos. 18 and 19 was allowed to be withdrawn by the learned Magistrate on an application made by the Public Prosecutor under Section 494 of the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26 and 27 were discharged by the learned Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give a signal on the arrival of the suspects. At about 8.50 A.M., accused No. 12 was seen entering the flat and Sevalia alerted the other members of the raiding party by giving the agreed signal. Half an hour later, a car stopped at the entrance to the compound of the building and accused Nos. 5, 6 and 7 alighted therefrom. Accused No. 5 went towards the concerned flat but got suspicious on noticing the presence of strangers near the entrance. He turned back and so did his two companions. All three of them took to their heels but were caught by the raiding party on a direction by Mugwe. Accused No. 12 was found inside the flat. The person of each one of accused Nos. 5, 6 and 7 was searched and yielded 200 slabs of gold weighing 10 tolas each. All the slabs bore foreign markings and were contained in jackets having long pockets and worn by each of the captives. Bunches of keys exhibits K-4, K-5 and K-6 and a diary containing accounts exhibit `O' were found lying in the passage forming part of the flat. Bandi exhibit J-2 was secured from a room of the flat. A search of the person of accused No. 12 yielded keys exhibit K-2, which fitted the locks used in the flat, and sheets of acco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 11 or 11.15 A.M. requiring him to visit the flat in Sagar Mandir and find out if any trouble was brewing and that if that was so, J.K. Shah was to be informed on the telephone. Accused No. 13 rushed to Sagar Mandir in a taxi and tried to find out from outside if there was anything wrong. For that purpose he looked through a broken ventilator. While he was coming towards the road on beach nearby he was detained and was taken inside the building. While the above statement was being recorded, accused Nos. 4, 5, 6, 7 and 8 were identified by accused No. 13 as the persons from whom he used to receive gold at Sagar Mandir. 4. The evidence relied upon by the prosecution against accused No. 13 may be split up under the following heads : (a) He was seen visiting the flat in Sagar Mandir on the 8th, 9th and 13th September 1966 by the Customs officials who were watching the premises under the orders of Mugwe. (b) He was peeping into flat No. 13 between 11 A.M. and 12 noon on the 14th of September 1966. (c) When he found that the flat was under search by officers belonging to the Customs Department, he tried to run away. (d) He was found in possession of keys fitting the locks of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinary raiment. Again, in a city like Bombay it is not unusual for persons sharing a particular accommodation to be provided with separate sets of keys for each in order to facilitate ingress or egress at will. Further an innocent man finding his premises being watched by persons in authority may well feel funky at the prospect of a false implication on the basis of a mere suspicion (which may or may not be well-founded) and may try to make himself scarce. Without more, the circumstances covered by heads (b), (c), (d) and (e) therefore, cannot be regarded as incriminating circumstances. So the conviction really rests on the confession attributed to the appellant. If it is found to be voluntary and true it may receive some support from the four heads of evidence just above described. If, on the other hand, the confession appears to be either untrue in any material particular or having been caused by any inducement, threat or promise such as is described in Section 24 of the Evidence Act, it must fall and with it fall the other heads of evidence, leaving no material to support the conviction. As it is, we find that the appellant has been able to prove the existence of circumstances w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd a ganji. I was then asked to remove my pant as well as my underwear by the said officer and I did so accordingly against my will. That officer then ordered me to sit in the position of "a chair". I was so asked to sit like a chair without the support of a wall even to my back. The six officers were then standing around me at that time. After making me to sit in that chair position they began to ask me about the said keys. I had again given the same reply about the said keys. If I moved a little from the position of a chair given to me, I was kicked by all the officers immediately. I was able to sit in that position for 4-5 minutes. I used to fall down thereafter. I used to be kicked therefor, made to stand again and asked to resume the same position. In this way, I had fallen and had been assaulted again and again by the said officers for about an hour or so. While I was so being questioned and made to sit in that position again and again one of the officers had gone out and had returned with a ruler in hand having a round shape. As I was made to sit in that position of a chair, I often used to move therefrom, the officers immediately used to assault me and I used to get up ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted to torture, assault and pressure for giving statements to the liking of officers or compelling them to sign the prepared statements". We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No. 15. As we have already pointed out, the time of infliction of injuries coincided with the day on which accused No. 15 was apprehended and his confession was recorded. In this situation it was the imperative duty of the prosecution to explain the circumstances in which it became necessary for force to be used by the staff on the person of accused No. 15 and in the absence of any such explanation there is no reason why his plea should not be taken at its face value. 7. We are of course not directly concerned with the voluntary nature of the confession of accused No. 15 in this appeal but the circumstances discussed in the last paragraph indicate that the Customs officials did not stick to ethical standards in the performance of their duties and, on the other hand exhibited such a zeal in bringing the captives to book as transgressed the limits set thereon by law. We have already alluded to the fact that the High Court itself did not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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