M.R. Sharma, J.
1. The Assistant Collector of Customs & Central Excise, Ludhiana, filed the complaint Ex. P.W. 6/A on May 26, 1976, before the learned Chief Judicial Magistrate, Ludhiana, on the allegations that the shop of the respondents was searched at about 11 A.M. on April 12, 1976, as a consequence of which 431 foreign made watches and 310 straps (also foreign made) were recovered therefrom. It was further alleged therein that simultineously the house of the respondents had been kept under surveillance when Amarjit Singh respondent, a boy of 13 years, was seen coming out of the house riding a cycle and carrying two bags, from which 1218 wrist watches and 52 straps of foreign make were recovered. It was claimed that the watches were notified articles and their posssssion constituted an offence punishable under Section 135(1)(ii) of the Customs Act, 1962.
2. At the trial the prosecution examined as many as six witnesses regarding the issuance of the search warrants, the prosecution of the respondents, recovery of 431 watches and 310 straps from the shop of the respondents, and the recovery of 1218 watches and 52 straps from the possession of Amarjit Singh, respondent, while he was leaving his house on a bicycle.
3. The learned trial Magistrate held that there was no proper information before the authority issuing the warrants of search ; that the ownership of the shop and the conscious possession of the watches had not been satisfactorily explained by the prosecution : and that the statements alleged to have been made by Kartar Singh and Amarjit Singh repondents before the customs authorities were inadmissible in evidence having been procured under duress. On these findings he acquitted the respondent vide his judgment 6th May, 1977. The Assistant Collector of Customs & Central Excise, Ludhiana, has come up in appeal against the order of acquittal passed by the learned Chief Judicial Magistrate.
4. We have gone through the evidence with the help of the learned Counsel. At the very outset we might add that the finding recorded by the learnd Chief JudicialMagistrade regarding the availability or nonavailability of information on the basis of which he issued the search warrants cannot be accepted as correct. Once imported watches are found to have been recovered from the possession of an accused person, the said watches themselves become evidence of the commission of the crime and it matters little whether they have been recovered pursuant to warrants irregularly issued.
5. So far as the statements Exs. PD and P.W. 7/A & B made by Kartar Singh and Amarjit Singh respondents respectively before the customs Authorities are concerned, we might refer to the following statement made in cross-examination by Amar Singh Sarah P.W. 2. Inspector Customs and Central Excise, Ludhiana, at the material time:
Kartar Singh accused after he was brought to circle office remained in my room till his statement was recorded. Throughout I remained present with him. Accused Kartar Singh was arrested at about 4.00 P.M. on 13.4.1970. Kartar Singh was not allowed to contact anybody from 11.00 A.M. of 12.4.1970 till 4.00 A.M. of 13.4. 70 when he was arrested.
6. The aforementioned statement implies that this respondent was rounded up and taken to the customs office immediately after the recovery of the articles and was not allowed to communicate with anybody till he had made a signed statement admitting his guilt. Torture or duress does not necessarily mean physical harm only. If a person is denied to have his constitutional right of obtaining legal advice, or even his right to make arrangements for it and for that matter to contact his relations, he would be deemed to have been put under some sort of fear and a statement made by him under these circumstances cannot be treated as a voluntary statement. It is also in evidence that as soon as Kartar Singh respondent came out of the office of Amar Singh Sarah P.W. 2, he shouted to his son Amarjit Singh respondent that he should not sign any statement, because of which the latter actually did not sign the statement Ex. P.W. 7/A & B purported to have been made by him. In this view of the matter the learned trial Magistrate was right in discarding these two alleged voluntary statements made these two respondents.
7. The last point which remains to be considered is the alleged possession of the respondents of the imported watches and straps. So far as the watches and straps recovered from the shop are concerned, Amar Singh Sarah P.W. 2 has admitted that one Girdhari Lal was also present in the shop at the time of the search and that nine watches and some straps were recovered from his possession. It has been suggested on behalf of the accused respondents that the said Girdhari Lal was accompanied by another Hindu gentleman who had left a bag in the shop after representing that he would soon come and collect it. This suggestion was denied by Amar Singh Sarah P.W. 2 but the suggestion itself discloses the defence plea put forth by the respondents, Amar Singh Sarah P.W. 2 has also admitted that he made no enquiries about the ownership of the shop from the Income-tax and Sales-tax Departments, He also admitted that the respondents were not joined at that time. At one stage, he went on to concede that the watches recovered from the shop did not belong to the respondents. The prosecution claims that these watches were found in the shop without there being any relevant entries, about their presence, in the statutory registers. Those register have not been produced in Court in support of these allegations by the prosecution. If documentary evidence on a point is available and is withheld it becomes difficult for a Court to accept oral statements on that point. For these reasons we affirm the finding recorded by the learned trial Magistrate that conscious possession of the respondents with regard to the watches and straps recovered from the shop has not been established beyond any reasonable doubt.
8. So far as the recovery of watches and straps from Amarjit Singh respondent is concerned, it might be added that he was apprehended immediately after he had come out from the house of his grand-father Nirmal Singh and the watches were in fact found from his possession but he was a young boy of 13 years at the time of this incident, for ought we know any member from the family of his grand-father might have asked him to carry those watches to any other place without disclosing to him that they were imported watches.
9. In view of the aforementioned circumstances, we are constrained to affirm the finding recorded by the learned Chief Judicial Magistrate but would like to add that proper evidence had not been collected and produced in this case and the oral evidence is fraught with some discrepancies which have been noticed by the learded trial Magistrate. This appeal deserves to fall and we order accordingly.
Sd/- M.R. Sharma.
Sd/- S.S. Sidhu