1. This is an appeal men miller Section 417 (3) of the Code of Criminal Procedure by the Superintendent of Central Excise. Nipani Town against the order of acquitial of the six respondents. Accused 1 to 6, by the Judicial Magistrate, First Class. Chikodi. in C. C. No 987 of 19611 Kespon,dents 1 to 5 along with the absconding accused Kabir Maracair, wore charged with having committed offences under Section 135 of the Customs Act of 1962 and Rule 126 II (2) (ii) of the Defence of India Rules of 1962, and Section Section 23(1) (A) read with Section 8(1) of the Foreign Exchange Regulation Act, 1947 Respondent 6 Accused 6 was charged with having aided and abetted accused 3 to 5 and absconding accused Kabir Maraeair in committing the said offences Thp learned Magistrate acquitted the respondents of all the charges. In this appeal, the legality and the correctness of the said acquittal is questioned by the appellant.
2. The prosecution case briefly stated is as follows: On 17-9-1963 at about 11 A M. respondents 1 In 5 and the absconding accused Kabir Maracuir were coming in a car MSX 367 from Kolhapur side with high speed. Al the Akol Check Post al Nipani. this car was stopped by P W 3 Alamkhan P C 827 and Ramachandra P W 14 a Central Excise Constable. Immediately, the absconding accused Kabir who was driving the car jumped from the seal and ran away. The car was searched and checked by the Central Excise Authorities P. W. I A. far as Superintendent of Excise in the presence of Panchas got removed the bolls fixed on the footboards and inside the Footboard he discovered six cloth jackets containing altogether 5.500 tolas of gold valued al Rs. 7,15,000 with foreign markings These were seized under a mahazar Ex. P-33. Thereafter the respondents 1 to 5 and the articles found in the car were taken to the office of the Assistant Collector of Central Excise Nothing incriminators was recovered from either the persons or the belongings of res pondents 1 to 5 But from Ihe suit ease be longing to Kabir. which was in the ear, a sum of Rs. 13,220 in c.asli was recovered The customs authorities recorded on different days al different stages a number of statements of res pondents 1 to 5 which have been marked as P 1 to P 21.
3. On 27-9-1968 respondent 6 (A-6) Krishnan was arrested while he was entering a Hotel Lakshmi Lodge in Ravapattah Road at Madras. Respondent 6 was the registered owner of the Car MSX 367 His statement Ex-P-7 was recorded A complaint was filed against respondents 1 lo 6. as stated earlier in the Court of the Judicial Magistrate, FirstClass, Chikodi. As Kabir was not apprehended and was absonding, the trial proceeded onlyagainst A-1 to A-6.
4. The learned Magistrate held that the prosecution had aot proved that respondents 1 to 5 were in conscious possession of gold. The mere fact that respondents 1 to 5 travelled in the car from Bombay did not make them liable. No inference could be drawn that they had knowledge of the existence of gold in the cavities in the car The learned Magistrate also held that mens rea was an essential ingredient under Section 135 of the Sea Customs Act. He also observed that the statements of accused 1 to 5 show that they had no knowledge whatsoever about the presence of the gold in the car. Their statements disclose that they came to know about the existence of gold only when the car was searched. He also held that from the material it was not possible to say that respondents 1 to 5 were in possession of the gold which was found in the car. There was also no evidence to show that respondent 6 either aided or belled respondents 2 to 5 and Kabir in carrying the gold. The learned Magistrate held that the prosecution has not proved any of the charges against respondents and acquitted them.
5. Shri Keshava Iyengar. the Central Government Pleader appearing on behalf of the appellant has contended that the acquittal of the respondents was erroneous. He argues, from the various circumstances in the case, it is clear that the respondents had knowledge that Kabir was transporting smuggled gold and these respondents were actually concerned in carrying the said gold. From Ihe evidence it is clear that the respondents knew or had reason to believe that Kabir was smuggling foreign gold Shri Keshava Iyengar stresses the fact that all the respondents, except respondents 3 and 6. left Madras with Kabir in the same car on 14-9-63 to Bombay. Thereafter, they all returned with Kabir in the same car from Bombay Shri Keshava Ivengar also stresses the fact that the evidence discloses that there were six jeekcts wherein gold was concealed and the number of occupants of the car was also six. Shri Keshava lyengar also points out that the respondents in their statement gave out the name of Kabir as Karuppiali Pillai. Shri Keshava Ivengar also points out that some of the respondents in their statements have stated that they knew that the gold belonged to Kabir.
6. Shri Keshava Iyengar has strenuously urged that the language used in Section 135(h) of the Customs Act is very wide A person who deals in am member with and goods which he knows or has reason to believe, is smuggled, would be guilty of an offence under Section 135 of the said Act Shri Keshava Iyengar also strongly relies on Section 123 of the Act wherein if any goods are seized in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized In support of his arguments. Shri Keshava lyengar has relied on : 2008(228)ELT8(SC) ; AIR 1965 SC 464; : 1966CriLJ712 and AIR 1964 SC 838.
7. We will now examine the said authorities cited by Shri Keshava Iyengar In Hukma v. Stale of Rajasthan. : 2008(228)ELT8(SC) their Lordships have observed that once it is found in consequence of the provisions of Section 178-A that the accused was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried, namely form in which gold was being carried, namely blocks and bars, and the fact that the accused was not the person who was expected to carry so much gold, all these circumstances establish beyond a shadow of doubt that the accused was carrying the gold, knowingly and with the intention of evading the probation that was in Force with respect to the import of gold into the country. It may he pointed out that in that case large quantity of gold with foreign marketing were found hidden in the trousers of the accused Their Lordships in para 9 of the judgment have observed as follows:
'There remains for consideration the last point raised by the learned counsel, namely. that even if Lal Singh had authority to seize at the place where the seizure was made andSection 178-A of the Sen Customs Act applied the prosecution had still to prove by further evidence that the accused had the mens res necessary to constitute the offence The learned counsel rightly pointed that while Section 178-A has the result of placing the burden of proof that the gold was not smuggled on the accused it is of no assistance to the prosecution to prove that the accused was carrying the gold knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India.
The words used in Section 178-A of the Sea Customs Act are similar to Section 123 of the Customs Act of 1962 Their Lordships have pointed out that in spite of the presumption under Section 178-A the prosecution had still to prove by further evidence that the accused had mens rea necessary to constitute the offenec. In spile of the Fact that burden to prove that the goods were not smuggled was on the accused it is the duty of the prosecution to prove that the accused was carying gold knowingly to evade the prohibition which the law imposed.
8. In Vallahhdas Liladhar v. Assl Col lector of Customs. AIR 1965 SC 481 their Lordships have observed as follows:
'. . Once it is proved that the gold is smuggled gold, it follows that it was brought into the country without payment of duty or in violation of the prohibition of restriction in force and whosoever brought I it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction.'
Here again, their Lordships have pointed out whosoever brought it and whosoever dealt withit thereafter knowing it to be 'smuggled' would be guilty. Their Lordships have stressed that the persons dealing with it must know that it is the smuggled gold.
9. In the Collector of Customs Calcutta v. Sitaram. : 1966CriLJ712 their Lordships have held 'Even attempts to purchase smuggled good come within the ambit of the words in any way concerned in any manner dealing with prohibited goods in Clause (81) of the section and thereafter the clause applies even to a case when a person has negotiated For the purchase of smuggled goods. Their Lordships have observed that 'in any way concerned and 'in any manner dealing with the prohibited goods' are of very wide import and it is not desirable to define Ihe meaning of these words. But, their Lordships have further pointed out that when a person does anv overt act in relation to prohibited goods which he knows to be such and the act is done in consequence of previous arrangement or agreement he would be doing an act concerned in dealing with prohibited goods. Their Lordships have also pointed out that in order to convict a person under section 167(81) mere knowledge on his part that the goods are prohibited goods or goods on which duty has not been paid, is not enough. The section further requires that there should also be an intention his part to defraud the Government of the duty payable or to evade am prohibition of restriction So, it is clear from this decision that the person must do an overt act in relation to a prohibited goods which he knows to he such This decision also makes it clear that in order to convict a person mere knowledge on his part that the goods are prohibited, is not sufficient Further, it is also held that so long as the prohibition or restriction remains or the duty has not been paid even a third person coming into possession of such goods would have the intention either to evade the prohibition or restriction or to defraud the Government.
10. In Raja Ham v. State of Bihar. : 1964CriLJ705 as in Ihc instant case, a car was stopped and searched. Four bundles of non-duty paid Ganja were recovered from the luggage boot of the car and one bundle from the leg space in front of the front seat of the car, where the appellant accused was silting Further, the appellant produced the key with which the luggage boot was opened As in this case, there were altogether six persons in the car when it was stopped and the car belonged to the appellant's brother all the six persons including the appellant who were in the car were prosecuted But, the five other person as who were in the car were acquitted The Correctness of the acquittals of these five was not questioned Only the appellant in that case was convicted The appellant held also made a confessional statement to the Excise Inspector.
Their Lordships in the said decision held that the confessional statement recorded by the Excise Inspector was inadmissible in evi-dence. Their Lordships acquitted the appellant on the around that the prosecution has not proved that the appellant was in exclusive possession of the Ganja found in the car. As the confessional statement was inadmissible, there was no evidence to show he was in possession of Ganja. As pointed out already, the acquittal of the other five persons who were travelling in the car was not challenged in that ease In the instant case, the contraband Roods were not kept in the front leg space and luggage boot but they were hidden in some secreted recess of the foot-board which may be not possible for any ordinary passenger of the car to know. Even though, in that case., the car belonged to the appellant's brother and he had the key of the luggage boot of the car and some Ganja was placed near the seat where he was sitting, their Lordships acquitted him on the ground that the proof of possession was not forthcoming. In the instant case, there is no evidence at all to show that anv of the res-pondents were in possession, much less exclusive possession of the gold seized from the car. On the other hand the evidence clearly shows that the car was purchased benami by Kabir and it was taken by Kabir to Bombay. and when the car was slopped. Kabir ran away from the car The prosecution case itself is that the gold belonged to Kabir.
11. After going through the evidence carefully, it is not possible for us to agree with Shri Keshava lyengar's contention that from the totality of the circumstances in the case, the only inference that can be drawn is that the respondents were concerned in carrying gold or had any knowledge or reason to believe that Kabir was transporting smuggled gold From the mere fact that they were passengers In the car, no inference can he drawn that they had knowledge or had reason to believe that gold was secreted in the crevices of the foot board. If really they were taken by Kabir to assist him in transporting smuggled gold. which was to he value of Rs. 7,15,000 one would expect fo find some substantial amounts either on the person or belongings of respondents 1 to 5. The evidence discloses no such appreciable sum was found with the respondents respondents 1 and 2 were employed by Kabir as drivers in his trip to Bombay and back Respondent 1 in his statement says that Kabir told them that he was buying a new car. It may he that they suspected that Kabir was engaged in some illegal activities But, unless it is proved that they had knowledge or had reason to believe that Kabir was dealing in smuggled gold we are of opinion, that they cannot he found guilty of offences with which they were charged.
All the respondents have stated that they had no connection with the gold that was seized, which was secreted in Ihe car and that the came to know that there was gold only after it was discovered by Ihe customs authorities on search We mav also point out that so far as respondent No 3 is concerned, the prosecution case itself is that respondent 5 hadmet him accidentally hi Bombay where he hadgone in search of work. As respondent-3 belonged to the same place i.e., Ramanathapur District, as respondent 5, he was promised a free lift to his place in the car. Shri Keshava Iyengar has pointed out that some of the respondents have stated that gold belonged to Kahir. From this statement no inference can be drawn against them Their statements must be read as a whole. They have specifically slated that they had no knowledge that gold was secreted in the car. They came to know that the gold had been secreted in the car only after the gold was discovered by the customs authorities As Ihe car was taken by Kabir to Bombay and back and immediately when the car was stopped. Kabir ran away and as the gold did not belong to any of them, the natural inference that they drew was that the secreted gold belonged to Kabir.
12. After re-assessing Ihe entire evidence in the case, il is not possible to say that the respondents were either in possession or were in any way concerned in carrying smuggled gold. There is no evidence to show that they had any knowledge or had any reason to believe that Kabir was carrying any smuggled gold. In our opinion, the prosecution also cannot rely on Section 123 of the Custom Act as the presumption will arise only when the smuggled goods are seized from the possession of the respondents. From the state of the evidence, it is not possible to say that any of the respondents were in possession of the gold secreted in the car. So far as respondent 6 Krishnan is concerned, he was admittedly not one of the passengers in the car at the time of the seizure. The mere fact that the car had been registered in his name would not be sufficient to hold that he either aided or abetted in the carrying of Ihe smuggled gold in the car. His statement which has been marked on behalf of the prosecution, discloses that Ihe car really belonged to Kabir and that Kabir had purchased the car and that he had only got it registered in the name of respondent 6.
13. We may also point out that this is an appeal against the acquittal. The mere fact, on the evidence, another view could be taken is no ground for setting aside the acquittal. It is not possible for us to say that the view taken by Ihe learned Magistrate is either erroneous or unreasonable. There are no compelling reasons for setting aside the order of acquittal of the respondents passed by the learned Magistrate.
14. In the result, for the reasons stated above, there is no mark In this appeal and the same is dismissed.
15. Appeal dismissed.