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TMI Blog1971 (7) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... es are hereby set aside. As regards appellants Budhoo and others we are unable to accede to the suggestion that they were as innocent as has been sought to be made out. We have no doubt that the High Court rightly upheld their conviction. Appeal dismissed. - 66 and 69 of 1968 - - - Dated:- 21-7-1971 - K.S. Hegde and A.N. Grover, JJ. [Judgment per : A.N. Grover, J.]. - These appeals have been brought by certificate from a judgment of the Bombay High Court. Gian Mahtani the sole appellant in Cr. A. 66/68, has been convicted by the High Court of charges under Section 135(b)(ii) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. He has been sentenced to two years on each of the several charges Nos. 28 to 33 and 38 to 41, the sentences being concurrent. On charges Nos. 63 to 66 a sentence of six months' rigorous imprisonment has been imposed. It has been directed that the sentences on all the charges shall run concurrently. In Cr. A. No. 69 of 1968 the sentence of Budhoo and two others was reduced by the High Court to rigorous imprisonment for six months. It may be stated that Gian Mahtani had been acquitted by the Additional Chief Presid ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for the prosecution accused Nos. 1 and 2 entered into a criminal conspiracy with P.W. 1 Harjani in the first week of August, 1963, the object of conspiracy being to purchase wrist watches and other luxury goods like saris, perfumes, electric cookers, etc., from Singapore and smuggle them into India at Bombay. Accused No. 1 was the principal financier and his share in the profits was fixed at 75%. Accused No. 2 and Harjani were to receive 25%. Accused No. 3 Motwani was to be sent to Singapore as an employee of this Syndicate on a fixed salary. He was to arrange for purchasing and sending the goods from there. 5. The modus operandi of the conspirators was that wrist watches were concealed in tins meant for provisions and electric cookers in such a way that nobody's suspicion might be aroused. Certain persons were employed as carriers. They were paid their passage to Bombay mostly in the cabin class and also the additional sum of Rs. 300/- to Rs. 400/- each. The duty which was levied on other luxury goods which were sent with them was paid by the conspirators at the docks in Bombay. 6. The Customs Officers took various steps from January 31, 1964, onwards in the matter of uneart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... harges Nos. 28 to 33, 38 to 42 and 63 to 66. The first set of charges were in respect of the goods alleged to have been smuggled by three carriers of A-1 whose names were Ivan, Baptists and Farooq into Bombay on January 3, 1964, by the ship S.S. `Roma'. The second set of charges related to the goods smuggled through two carriers of the name of Aziz and Herbert who arrived by the ship S.S. `Asia' on January 12, 1964. The third set of charges related to the goods which were brought by Jagtiani and Vaswani (P.Ws.) who arrived by the ship S.S. `Marconi' which arrived on January 20, 1964. As regards the three carriers who came by `Roma' it was not disputed on behalf of A-1 that they had actually arrived by that ship. His case was that these carriers did smuggle goods for him but the same consisted of Indian currency in specie. The High Court proceeded to reject the defence and entertained no doubt that A-1 was smuggling watches and luxury goods. The Court agreed that apart from the bare word of Harjani that these carriers brought luxury goods worth Rs. 15,000/- and 18,000/-, watches there was no other evidence relating to the nature of the goods. But weight was attached to the fact that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect of these offences as required by Section 137 of the Customs Act, 1962. (2) The conviction of A-1 on the aforesaid charges was based on no evidence. As a matter of fact A-1 had been convicted on the falsity of his own explanation or version. (3) The High Court had relied upon inadmissible evidence and had failed to consider that the prosecution had accepted in the Trial Court the explanation given by A-1 and had actually field an application that he should be convicted for importing Indian currency is specie. (4) At any rate, such evidence including the evidence and circumstances which had been relied upon was wholly insufficient to warrant the conviction of A-1 who had been rightly acquitted by the Trial Magistrate. 12. In our judgment it is not necessary to examine all the above contentions because we are inclined to agree with Mr. Jethmalani with reference to his second contention that the conviction of A-1 could not be sustained on the charges based on the alleged smuggling by means of the carriers who arrived by the two ships `Roma' and `Asia'. One of the essential facts which had to be established by the prosecution was the exact nature of the goods stated to have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was the subject matter of the complaint. It is a moot question, which need not be decided, whether A-1 could be convicted of any overt act which was pursuant to a conspiracy for which he had not been charged and which was the result of quite a different conspiracy. But it is not possible to lose sight of the fact that even if A-1 was proved to have smuggled certain articles through the three carriers who arrived by `Roma' and the two carriers who came by `Asia', he could not be convicted of smuggling something which was unknown and about the nature of which there was total lack of evidence. To say that luxury goods of the nature specified in the complaint and watches had been smuggled would be purely conjectural. Unless the link about the nature and the description of the goods could be established the chain of circumstantial evidence would necessarily break and this is what was lost sight of by the High Court. We would accordingly hold that the Trial Magistrate was right in acquitting A-1 of the aforesaid charges and the High Court was in error in convicting him. 13. As regards the charges 63 to 66 which related to the goods brought by Jagtiani and Vaswani (P.Ws.) who arrived b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances do create a serious suspicion of the commission of offences with which A-1 was charged and of which he is being acquitted. But according to the system of jurisprudence which we follow, conviction cannot be based on suspicion nor on the conscience of the Court being morally satisfied about the complicity of an accused person. He can be convicted and sentenced only if the prosecution proves its case beyond all reasonable doubt. This is what it has failed to do with regard to A-1. His appeal is allowed and his conviction and sentences on the various charges are hereby set aside. 15. As regards appellants Budhoo and others, a great deal of stress has been laid by Mr. Nuruddin Ahmed who appears on their behalf on their being poor persons who had been the victims of the machinations of seasoned smugglers. It has been urged that they had no personal knowledge that the fruit tins which they were asked to carry contained watches or contraband articles. For the reasons given by the High Court, we are unable to accede to the suggestion that they were as innocent as has been sought to be made out. We have no doubt that the High Court rightly upheld their conviction. Their appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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