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Lachmandas Kundandas Dodani Vs. State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 473 of 1968
Judge
Reported inILR1971Delhi426
ActsIndia Evidence Act, 1872 - Sections 133
AppellantLachmandas Kundandas Dodani
RespondentState
Advocates: V.D. Mahajan, Adv
Cases ReferredState of Bihar v. Basawan Singh
Excerpt:
.....story of the accomplice is true and that it is reasonably safe to act upon it. (22) before concluding, i would like to make some observations about some facts which have been disclosed by the evidence in this case. public witness l's evidence discloses that such smuggling activities had been carried on not only in respect of goods like watches, but......the prosecution examined 41 witnesses in the trial court, usha advani herself being examined as public witness 1. she testified to the facts already stated and narrated all the events that took place from the time of the first meeting with the petitioner at singapore till 15th october, 1961. several statements made by her before the customs authorities were also adduced in evidence by way of corroboration. her personal diary which was found in her possession on 15-10-1961 was also exhibited as public witness 1./36. this diary contained entries of some of the events narrated by her and it also contained a telephone number which, according to her, was given by the petitioner before he left to bombay on 41-10-1961. according to her, she was to contact the petitioner by ringing this.....
Judgment:

M.R.A. Ansari, J.

(1) The petitioner, Lachmandas Kundandas Dodani, and another person by name, Narsimhan Govinda Rajan, were prosecuted before the Sub Divisional Magistrate, Delhi, for offences under section 120-B Indian Penal Code read with section 5 to the Imports and Exports Control Act, 1947 and section 167(81) of the Sea Customs Act, 1878. The facts of the prosecution case against them may be briefly stated:

(2) The petitioner was an Indian national who was doing business in Singapore in the name of two firms, namely, (1) Lachman Jewellers and (2) Luxury Corporation. These firms were situated at 25 High Street, Singapore. These firms were dealing in radios, watches, cameras, fountain pens and other luxury goods. Their customers in India were mostly the foreign embassies and consulates. The petitioner's firms used to send goods to these embassies and consulates both by air as well as by sea and these parcels were delivered to the officials of the embassies and consulates without being opened by the Customs authorities on the strength of the certificates granted by these embassies and consulates. This was part of the diplomatic privileges enjoyed by the accredited officials of the embassies and consulates. Mr. O.P. Nadal, was the charge d affaires of the Uruguyan Legation in the year 1960-61. The petitioner's co-accused Rajan was an employee in the Uruguyan Legation. One Miss Usha Advani also joined this Legation in March, 1960 as a Social and Cultural Secretary to the Legation. In April 1961, Mr. Nadal and Miss Usha Advani went to Singapore and visited the petitioner's firms to make some purchases. The petitioner invited them for dinner. At this dinner, the petitioner made a proposal to Mr. Nadal that he would be sending parcels containing watches to Mr. Nadal from time to time and that these parcels should be received by Mr. Nadal and later delivered to the petitioner when he visited India. For affording this facility, the petitioner offered to pay Mr. Nadal commission at the rate of Rs. 10 per watch Mr. Nadal agreed to this proposal.

(3) In pursuance of this arrangement, the petitioner sent parcels from time to time addressed to Mr. Nadal. All these parcels were delivered to Mr. Nadal without being opened by the Customs authorities on the strength of letters issued by Mr. Nadal. these parcels ostensibly contained goods like clothes, radios, transistors, washing machines, refrigerators, fans etc. But as a matter of fact, these parcels contained watches which were to be disposed of in India. This was the method of smuggling watches into India, as the import of watches was prohibited under the Imports and Exports Control Act. The petitioner also visited Delhi from time to time and collected these parcels and paid to Mr. Nadal the agreed commission, the petitioner's co-accused Rajan as well as Usha Advani were aware of these smuggling activities and were actually parties to this conspiracy.

(4) It so happened that Mr. Nadal had to leave India for sometime. It was then agreed between the petitioner and Mr. Nadal that during the absence of the latter, the petitioner should send parcels to another diplomat, namely, Mr. Marco A. Almazaii, who was charge d' affaires of the Mexican Embassy at that time. The arrangement was that the parcels should be sent in the name of Mr. Almazan and they would be received by him in the same manner in which they were received by Mr. Nadal on the strength of letters signed by Mr. Almazan and that these parcels should be delivered at the Uruguyan Legation. The petitioner would collect these parcels later and the agreed commission would be paid by him to Usha Advani. Half of this commission was to be paid to Mr. Almazan for his services. In pursuance of this arrangement also, a number of parcels ostensibly containing household goods etc. but in fact containing watches were sent by the petitioner to Mr. Almazan; they were received by the latter and were duly delivered at the Uruguyan Legation. The petitioner later collected these parcels from the Uruguyan Legation and paid the agreed commission to Miss Usha Advani.

(5) In addition to the parcels which were sent to Mr. Almazan during the absence of Mr. Nadal, the petitioner also .sent some parcels through Mrs. Nadal when the latter visited Singapore. These parcels were cleared by some agents at Madras on the strength of letters which had already been executed by Mr. Nadal before he left India. These parcels also contained watches and they were collected later by A the petitioner and the agreed commission was paid by him.

(6) According to the prosecution, the petitioner was thus able to smuggle 7002 watches worth about Rs. 7,00,000. The petitioner came to Delhi on or about 10th October, 1961 and contacted Miss Usha Advani. A parcel which had been sent by the petitioner to Mr. Almazan was then collected by them and this parcel contained 2680 watches. The petitioner did not have enough money with him for the payment of commission on these watches and, thereforee, he asked Miss Usha Advani to come to Bombay for receiving payment. The petitioner divided these watches into two parts; 1561 watches were carried by the petitioner to Bombay and the remaining watches were to be brought by Miss Usha Advani to Bombay. The petitioner also informed Miss Usha Advani that he had already dispatched two parcels from Singapore before he had left for Delhi in the name of Mr. Almazan and that she should collect these parcels also and bring them with her to Bombay. Having given these instructions, the petitioner went to Bombay on 14-10-1961. One of the two parcels mentioned by the petitioner was received by Mr. Almazan on the same day, namely, 14-10-1961 and this parcel was collected by Usha Advani. On 15-10-1961, Usha Advani went to the Palam Airport for going to Bombay. She carried four suit- cases with her and in one of the suit-cases, she carried the unopened parcel which had been received on the previous day and in another suit-case, she carried 1 1 19 watches which the petitioner had left in her custody and which he wanted her to bring with her to Bombay. The Customs authorities somehow received information that Usha Advani was carrying watches which had been smuggled into India. thereforee, when she arrived at the Palam Airport, they inspected her luggage and found 220 watches in the unopened parcel and 1119 watches in another suit-case. When interrogated by the Customs authorities, Usha Advani disclosed all the smuggling activities from the beginning that were carried on by the petitioner through Mr. Nadal and Mr. Almazan. On 27-10-1961, the second parcel, which was sent by the petitioner, arrived at the Foreign Post Office at Delhi and this parcel was opened by the Customs authorities in the presence of witnesses and this parcel was found to contain 240 watches. These watches were also seized by the Customs authorities. As Mr. Nadal and Mr. Almazan enjoyed diplomatic immunity from prosecution; only the petitioner and his co-accused Rajan were prosecuted and Usha Advani herself was taken as a prosecution witness.

(7) The prosecution examined 41 witnesses in the trial Court, Usha Advani herself being examined as Public Witness 1. She testified to the facts already stated and narrated all the events that took place from the time of the first meeting with the petitioner at Singapore till 15th October, 1961. Several statements made by her before the Customs authorities were also adduced in evidence by way of corroboration. Her personal diary which was found in her possession on 15-10-1961 was also exhibited as Public Witness 1./36. This diary contained entries of some of the events narrated by her and it also contained a telephone number which, according to her, was given by the petitioner before he left to Bombay on 41-10-1961. According to her, she was to contact the petitioner by ringing this number. An account book maintained by her was also exhibited through her as Ex. Public Witness 1/35. This was recovered from one of the suit-cases which she carried with her at the Palam Airport. This account book contained entries regarding the various amounts paid by the petitioner to Mr. Nadal by way of commission for the watches. Some of the other prosecution witnesses were the employees of the Foreign Post Office who testified to the delivery of the various parcels sent by the petitioner either to Mr. Nadal or to Mr. Almazan. The employees of the several hotels where the petitioner stayed when he visited Delhi were also examined. The employees of the petitioner's firms at Singapore were also examined and they testified to the sending of the various parcels to Mr. Nadal or to Mr. Almazan. It may be pointed out here that it was at the instance of the petitioner himself that the employees of his firms at Singapore were examined on commission. These witnesses, of course, denied knowledge of the fact that these parcels contained watches. According to these witnesses, these parcels contained only the goods which were mentioned in the parcel receipts. Then, finally, the prosecution examined the various Customs officials who had seized the watches from the possession of Usha Advani and who had recorded her statements as well as the statements of the petitioner and Rapn. Excepting the evidence of Public Witness 1 which has to be considered hi some detail, it is not necessary to state the details of the evidence of the other witnesses, because most of the evidence is not disputed by the petitioner.

(8) The petitioner, in Ills statement under section 342 Criminal Procedure Code . admitted that he was sending parcels to Mr. Nadal as well as to Mr. Almazan. But he denied that these parcels contained any watches. According to him, these parcels contained only goods which were mentioned in the parcel receipts. While admitting that he had invited Mr. Nadal and Usha Advani for dinner at Singapore on 27-4-1961, he denied that he had made any such proposals to Mr. Nadal for smuggling watches as was alleged by Usha Advani. He also denied that the watches which were recovered from the possession of Usha Advani on 15-10-1961, had been sent by him. He also denied that the parcel which was received at the Foreign Post Office on 27th October, 1961 had contained any watches. According to him, this parcel contained only the goods marked on the parcel and the watches had been surreptitiously put into this parcel by the Customs authorities in order to involve him. He stated that he had been falsely implicated by Lisha Advani as she wanted to protect the real .culprits in whom she was interested.

(9) The petitioner's co-accused, Rajan, in his statement under section 342 Criminal Procedure Code ., while admitting that he collected some parcels from the Mexican Embassy and has brought them to the Uruguyan Legation and also that he had collected some parcels brought by Mrs. Nadal from Singapore, denied knowledge of their contents. He also denied that any watches were handed over to the petitioner in his presence or that any commission was paid by the petitioner to Mr. Nadal. He stated that he had been falsely implicated by the Customs authorities as he refused to appear as a witness against the petitioner. He did not examine any defense witnesses.

(10) On a consideration ol' this evidence, the learned trial Court convicted both the petitioner and his co-accused Rajan for an offence under section 120-B IPC read with section 5 of the Imports and Exports Control Act and section 167(81) of the Sea Customs Act and sentenced ihe petitioner to undergo rigorous imprisonment for one year under section 120-B Ipc, to undergo rigorous imprisonment for two years and to pay a fine of Rs. 2,000 under section 167(81) of the Sea Customs Act and to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 1,000 under section 5 of the Imports and Exports Control Act, 1947. He sentenced Rajan to undergo rigorous imprisonment for one year under section 120-B Indian Penal Code , to undergo rigorous imprisonment for one year and also to pay a fine of Rs. 500 under section 167(81) of the Sea Customs Act and to undergo rigorous imprisonment for six months and also to pay a fine of Rs. 500 under section 5 of the Imports and Exports Control Act. The sentences of imprisonment passed against both the accused were made to run concurrently. Their conviction and the sentences passed against them were confirmed on appeal by the Additional Sessions Judge, Delhi. The present revision petition is filed only by the petitioner,

(11) The petitioner was not present nor was he represented at the time of the hearing of the revision petition. The petitioner was released on bail by this Court on 27-9-1968 and he was directed to execute a bond for Rs. 15,000 with one surety to the satisfaction of the trial Magistrate. Since the petitioner was released on bail, it is to be presumed that the petitioner had furnished security as directed by this Court. Neither the petitioner nor his counsel, however, was present when the petition was listed for hearing on 23-6-1970. Thereafter, a number of notices were issued to the petitioner but they were all returned unserved on him. At one stage, Shri B. Singh, Advocate, appeared for the petitioner and stated that he would try to contact the petitioner and to ensure his appearance, but on the next date of hearing, he admitted that it was not possible for him to contact the petitioner. The bail granted to the petitioner was, thereforee, cancelled and a non-bailable warrant was issued against him. A notice was also issued to the surety on whose bond the petitioner was released on bail by the trial Court. But neither the warrant issued against the petitioner nor the notice issued against the surety was served or executed. It is reported by the Additional Chief Judicial Magistrate, Parliament Street. New Delhi, that the bond executed by the surety was not available in the records. Under these circumstances, a finding was recorded that the petitioner is evading the execution of the warrant and that sufficient notice had been given to him regarding the hearing of the petition and that it was not necessary to postpone the hearing of the petition till he was actually arrested and brought before the Court. The petition was, thereforee, heard in his absence. But Dr. V.D. Mahajan, learned counsel for the Customs Department, and Mr. D.R. Sethi, counsel for the State, have taken me in detail through the entire record of the case and have argued the matter at great length. I have myself studied the case with particular care in view of the fact that the petitioner was not represented.

(12) To start with, it has to be borne in mind that this case has passed through the trial stage as well as the stage of appeal and is now before me in revision proceedings. Both the trial Court as well as the appellate Court have accepted the prosecution evidence. It is, thereforee, not necessary for me to re-appraise the evidence in the same way as I would if I would be hearing an appeal. As a matter of fact, in this case, excepting the evidence of Usha Advani, the rest of the prosecution evidence is of such a nature that the question of its being accepted as true or of its being rejected as false does not arise. As already stated, the petitioner himself had not disputed most of the prosecution evidence. The receipt of various parcels' purported to have been sent by the petitioner's firms at Singapore to Mr. Nadal and to Mr. Almazan has been proved by both oral and documentary evidence. The oral evidence is that of the officials of the Foreign Post Office and Customs Officials and their evidence is corroborated by the evidence of the employees of the petitioner's firms at Singapore. The postal receipts and other documents which accompanied these parcels have also been proved and there can be no doubt about the authenticity of these documents. This evidence relating to the dispatch of the several parcels by the petitioner's firms at Singapore and their delivery either to Mr. Nadal or to Mr. Almazan would not by itself incriminate the petitioner as these witnesses do not speak to the contents of the parcels. It is only the contents of the two parcels, namely, the one found in the possession of Usha Advani at the Palam Airport and the other which was received at the Foreign Post Office on 27-10-1961 that were seen by these witnesses. But even this evidence would not be sufficient to incriminate the petitioner unless this evidence is taken as corroborating the evidence of Usha Advani. thereforee, it is only her evidence that requires close scrutiny.

(13) Before considering the effect of her evidence, it is necessary to bear in mind the fact that she is an accomplice and before acting upon her evidence, it is necessary to apply the following two tests, namely:-

(I)whether her evidence itself is worthy of credence; and (ii) whether her evidence is corroborated by other independent evidence.

(14) On an examination of the entire evidence on record, I am satisfied that the evidence of this accomplice satisfies both these tests.

(15) In the first instance, she has no motive to falsely implicate the petitioner. The petitioner's name and identity Were not known to the Customs authorities before she was interrogated on 15-10-1961 and, thereforee, it cannot be said that it was at the instance of the Customs authorities that she had implicated the petitioner. It cannot also be said that she has falsely implicated the petitioner in order to protect the real culprits in whom she was interested. From the statements made by her to the Customs authorities as well as in the trial Court, it is obvious that she is not shielding any one who was carrying on smuggling activities with Mr. Nadal. She has mentioned the names of a number of persons who were engaged in such activities. She has not even attempted to exculpate herself from these activities. She has admitted that she was fully aware of all these activities and that she was actively assisting Mr. Nadal in these nefarious transactions. At the time she made these statements to the Customs authorities, she was under arrest and was in jail and no promise was made to her that she would not be prosecuted along with other culprits. It is no doubt true that ultimately she was not made a co-accused along with the petitioner and Rajan. She was also not taken as an approver after being granted pardon. But there is no reason to think that she made these statements before the Customs authorities due to any threat, inducement or promise from the Customs authorities. Her evidence does not suffer from any infirmities which would show that she is not speaking the truth. It may be that everything that she stated might not have been corroborated by other independent evidence.

(16) But there was nothing wh'ch she said which was contradicted by other evidence and which proved that she was not speaking the truth. The only piece of evidence which may be said in a way to contradict her evidence is a letter dated 21-10-1961 which was found in her possession when she was arrested at the Palam Airport on 15-10-1961. This letter was written to her by one Shorry who is said to have been on rather intimate terms with her. Since the letter bore the date 21-10-1961, it was contended that this letter could not have been in her possession on 15-10-1961. But she has given a plausible Explanationn for this discrepancy, namely, that the date 21-10-1961 was a mistake. I cannot see any sinister significance in the discrepancy in the date. The letter itself does not reveal any incriminating transactions between Mr. Shorry and F.W. 1. I here would have been no motive in this letter being planted on Public Witness 1. Except this letter, there is no other piece of evidence which can, in any way, be said to contradict the evidence of Public Witness 1. Public Witness I has made a dean breast of all the transactions indulged in by Mr. Nadal. The details which she has mentioned regarding these transactions show that she is speaking the truth. But even if she is a truthful witness, the law requires that she being an accomplice, her evidence cannot bo acted upon unless it is corroborated by other independent evidence.

(17) But the nature of the independent evidence which is required for corroborating of the evidence of an accomplice has been explained by the Supreme Court in the State of Bihar v. Basawan Singh : 1958CriLJ976 in the following terms:--

DEPENDENT corroboration does not mean that every detail of what the witnesses of the raiding party have said must be corroborated by independent witnesses. Even in respect of the evidence of an accomplice, all that is required is that there must be some additional evidence, rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon it. Corroboration need not be direct evidence that the accused committed the crime; it is sufficient even though it is merely circumstantial evidence of his connection with the crime.'

(18) I have now to consider whether the trial Court and the appellate Court have borne in mind the above principles in accepting the evidence of Public Witness 1 and in convicting the petitioner on the strength of her evidence.

(19) P.W. 1 has started her evidence by referring to the dinner that she and Mr. Nadal had with the petitioner at Singapore on 27-4-1961. the petitioner has admitted that he had dinner with them on that particular date. According to Public Witness 1 it was at this dinner that the conspiracy was first hatched for the smuggling of watches into this country. According to Public Witness 1, the first parcel that was dispatched by the petitioner in pursuance of this conspiracy was the one that was received on or about 9-5-1961. The dispatch and receipt of this parcel has been proved by independent evidence. The contents of this parcel have, no doubt, been not proved by any independent evidence nor also, the collection of the parcel by the petitioner and the payment of the commission by him to Mr. Nadal. But it is proved by independent evidence that the petitioner had come to Delhi and stayed at Ashoka Hotel on or about the 10th May, 1961. Similarly, the dispatch and the receipt of the various other parcels have been proved by independent evidence. It has also been admitted by the petitioner's employees at Singapore. The visits of the petitioner to Delhi which coincided with the receipt of these parcels and his stay either in the Ashoka Hotel or in the Claridges Hotel has been proved by independent evidence. The petitioner himself has admitted that he had visited Delhi and had stayed at these hotels on these dates. The dispatch to and receipt of the parcels by Mr. Almazan has also been proved by independent evidence. The fact that the petitioner visited Delhi on the dates on which, according to Public Witness I, he had collected the watches in the parcels has also been proved by independent evidence and the petitioner himself has admitted that he visited Delhi on those dates. Then, finally, the petitioner's visit to Delhi on or about the 14th October, 1961 when the last batch of the parcels was received has also been proved by independent evidence and the fact that the petitioner travelled by air from Delhi to Bombay on 14-10-1961 has also been proved by independent evidence, namely, the evidence of a co-passenger. The telephone number which according to P.W. 1 was given by the petitioner to her for contacting him at Bombay was found noted in the pocket diary of Public Witness 1 and in one of his statements before the Customs authorities, the petitioner admitted that he had given this number to P.W. 1. He would no doubt say that he had given this number to Public Witness 1 at Singapore and not at Delhi. The receipt of the various parcels dispatched by the petitioner's firms at Singapore to Mr. Nadal or to Mr. Almazan and the petitioner's visits to Delhi on or about those dates cannot be explained away as mere coincidence. These circumstances would undoubtedly corroborate the evidence of Public Witness 1.

(20) With regard to what happened on the last visit of the petitioner to Delhi before these smuggling activities were brought to an end has been spoken to by Public Witness 1. According to her, the parcel which had been received by Mr. Almazan contained 2680 watches and these were divided into two portions. One portion was taken away by the petitioner himself to Bombay and the other portion was entrusted with P.W. 1 for being brought to Bombay. When Public Witness 1's luggage was inspected at the Palam Airport on 15-10-1961, one of her suit-cases contained 1119 watches. According to Public Witness 1, the petitioner had told her that he had dispatched two parcels before he had left Singapore and that he had asked her to collect these parcels and bring them along with her to Bombay. One of these parcels was collected by her on 14-10-1961 itself and she carried this parcel with her when she went to Palam Airport on 15-10-1961. When this parcel was opened, it was found to contain 220 watches. This again would corroborate her evidence on 'this point. Then, on 27-10-1961, the other parcel which had been dispatched by the petitioner from Singapore was received at the Foreign Post Office and was opened in the presence of Government officials and it was found to contain 240 watches. This again corroborates the evidence of Public Witness 1. It would, thereforee, appear that even though there is no corroboration with regard to the contents of the earlier parcels sent by the petitioner to Mr. Nadal or to Mr. Almazan. there is independent corroboration with regard to the contents of the two parcels which were sent by him before he left Singapore. There is also corroboration of the fact that he entrusted 1119 watches with Public Witness 1 for being brought to Bombay. In my view, this evidence affords sufficient corroboration to the evidence of Public Witness 1, both as regards to the offence of criminal conspiracy as also with regard to the offence of smuggling the watches into India.

(21) Neither the trial Court nor the appellate Court has, thus. committed any illegality or irregularity in the appreciation of the evidence or in accepting Public Witness 1's evidence after applying the test of corroboration as required by law. There is, thereforee, no reason to interfere with the petitioner's conviction or the sentences passed against him. The same. are, thereforee, confirmed.

(22) Before concluding, I would like to make some observations about some facts which have been disclosed by the evidence in this case. It would appear that smuggling activities are being carried on on a very large scale with the connivance of the foreign embassies and consulates in this country. In fact, it would appear from the evidence of Public Witness 1 that these smuggling activities are carried on not only for the purpose of gaining some personal benefit by the diplomats concerned but also for meeting the expenses of the Legations. This is a very astonishing situation and it requires to be looked into by the Government. It would appear that the diplomatic immunity granted to some of these foreign legations in this country is being abused systematically and this diplomatic immunity is not only exploited by these foreign nationals but also by our own people and that such smuggling activities constitute the main business of some of these people. Public Witness l's evidence discloses that such smuggling activities had been carried on not only in respect of goods like watches, but. also in respect of gold and precious stones. The rule that the parcels addressed to these foreign legations have to be cleared by the Customs authorities without inspection merely on the production of a letter signed by an official of the foreign legations in my view requires to be re-considered.

(23) In the result, the revision petition is dismissed.


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