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Assistant Collector of Customs Vs. Shanti Lal Laxmi Chand Modi and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtDelhi High Court
Decided On
Case NumberCriminal Appeal No. 43 of 1970
Judge
Reported inILR1971Delhi584B
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 196A, 342 and 367; Evidence Act, 1872 - Sections 133
AppellantAssistant Collector of Customs
RespondentShanti Lal Laxmi Chand Modi and ors.
Advocates: V.D. Mahajan,; H.L. Anand and; Girdhar Govind, Advs
Cases ReferredIn State of Andhra Pradesh v. I. B. S. Prasada Rao and
Excerpt:
(i) criminal procedure code (1898) - section 196-a --sanction for prosecution --authority competent to give --sanctioning authority whether to apply its mind to evidence before giving sanction.; that according to the notification no. f. 126/137 dated 1-4-1937 issued by governor general in council in pursuance of section 94(3) of government of india act, 1935 the chief commissioner was authorised to continue to discharge all functions which he was discharging immediately before the coming into force of the government of india act, 1935 until they were revoked. admittedly, the authority to carry on such functions has not hcen revoked. thereforee, the chief commissioner was competent under section 196-a cr.p.c. to sanction the prosecution of the respondents. ;.....m.r.a. ansari, j. (1) the assistant collector of customs, new 'delhi, filed a complaint in the court of the sub divisional magistrate, new delhi, against the following seven persons under section 120-b, indian penal code read with section 167(81) of the sea customs act, 1878; section 167(81) of the sea customs act; and under section 167(81) of the sea customs act read with sections 114 and 109, indian penal code :- 1.mitri kassab, 2. latif hoory alias hoory alias noora. 3. shantilal laxmichand modi, 4. jey chand laxmichand modi, 5. nalin kumar dass, 6. rasiklal g. shah and 7. harbanslal sharaf.(2) the accusations made in the complaint against the above-mentioned seven persons were that they were parties to a continuing conspiracy during the period august 1961 to the end of june 1962 to.....
Judgment:

M.R.A. Ansari, J.

(1) The Assistant Collector of Customs, New 'Delhi, filed a complaint in the Court of the Sub Divisional Magistrate, New Delhi, against the following seven persons under section 120-B, Indian Penal Code read with section 167(81) of the Sea Customs Act, 1878; section 167(81) of the Sea Customs Act; and under section 167(81) of the Sea Customs Act read with sections 114 and 109, Indian Penal Code :-

1.Mitri Kassab, 2. Latif Hoory alias Hoory alias Noora. 3. Shantilal Laxmichand Modi, 4. Jey Chand Laxmichand Modi, 5. Nalin kumar Dass, 6. Rasiklal G. Shah and 7. Harbanslal Sharaf.

(2) The accusations made in the complaint against the above-mentioned seven persons were that they were parties to a continuing conspiracy during the period August 1961 to the end of June 1962 to smug large quantities of gold into India, to dispose of the gold in India and to smuggle out of India Indian rupees currency notes and foreign exchange in sterling and U.S. dollars. In pursuance of this conspiracy, it was alleged that a Flight Engineer of the B.O.A.C. by name Charles Maloney had smuggled into India from time to time between August 1961 and June 1962 gold of the total value of Rs. 7,20,000- and had also smuggled Indian currency out of India of the total value of Rs. l,33,000.00 and also nearly 3,000 sterling and about 10,000 U.S. dollars. It was further alleged that on the last occasion, namely, on 27th June, 1962, when Charles Maloney had attempted to smuggle gold into India, the Customs authorities had received Secret information and when the B.O.A.C. plane landed at Palam Airport at 5.10 A.M. on 27-6-1962, Charles Maloney was searched by the Customs authorities and was found to be in possession of gold bars weighing 15 kilos approximately and valued at Rs. 1,80,000. As Charles Maloney did not have the necessary permission of the Reserve Bunk of India to import gold into India, the gold found in his possession was seized by the Customs authorities under section 178 of the Sea Customs Act. Certain incriminating documents were also found in the possession of Charles Maloney and they were also seized by the Customs authorities. Charles Maloney was then interrogated by the Customs authorities and he made statements disclosing the existence of the criminal conspiracy and also the names of the persons who were parties to the said conspiracy and also the various transactions which had been undertaken by him for smuggling gold into India and smuggling Indian currency as well as foreign currency out of India. In pursuance of the information given by Charles Maloney, one of the accused persons Rasiklal G. Shah was found in the Airlines Hotel at Delhi and certain incriminating documents were also found in his possession which were seized by the Customs authorities. Rasiklal G. Shah was also interrogated by the Customs authorities and he made statements to them, which corroborated the statements given by Charles Maloney. On the information given by Charles Maloney and Rasiklal G. Shah, the business premises as well as the residential houses of S. L. Modi and J. L. Modi in Bombay and Delhi were also searched by the Customs authorities on the same date, namely, 27th June 1962. These searches yielded incriminating documentary evidence including a secret code which also corroborated the statements of Charles Maloney regarding the existence of the criminal conspiracy and the smuggling operations carried on in pur issuance of the said conspiracy. The Customs authorities were also able to recover copies of certain telegrams and cables from the head office at Calcutta which were either received by S. L. Modi from his co-conspirators at Beirut or which were sent by S. L. Modi himself to the said persons. All this evidence, according to the complaint filed by the Assistant Collector of Customs, proved that the seven persons named in the complaint had committed offences under section 120-B Indian Penal Code read with section 167(81) of the Sea Customs Act and also under section 167(81) of the Sea Customs Act itself.

(3) The learned' Magistrate before whom this complaint was filed issued summons only to accused Nos. 3 to 7, and did not issue summons to accused Nos. 1 and 2, because they were not residents of India but were foreign nationals. Evidence was recorded by the learned Magistrate under section 252 Criminal Procedure Code . before framing the charge. As this evidence did not disclose a prima facie case against accused No. 5 namely, Nalin kumar Dass, he was discharged under section 253 Criminal Procedure Code . and the trial against the remaining accused was proceeded with. During the course of enquiry, accused No. 7, Harbanslal Sharaf, absconded and. thereforee, the case against him was separated under section 512 Criminal Procedure Code . and the case against S. L. Modi, J.L. Modi and Rasiklal G. Shah was proceeded with and charges were framed against these accused under section 120-B Ipc read with section 167(81) of the Sea Customs Act. 1878, section 167(81) of the Sea Customs Act read with section 8 of the Foreign Exchange Regulation Act. 1947 and section 19 of the Sea Customs Act and separate charges were framed against these accused under section 167(81) of the Sea Customs Act with regard to each of the alleged transactions of smuggling gold into India and of smuggling out of India Indian and foreign currency on various dates. The prosecution examined 62 witnesses including Charles Maloney, who was examined as Public Witness 27. The evidence of this witness as well as of the other material witnesses will be referred to at a later stage. When the accused were examined under section 342, Criminal Procedure Code ., they filed written statements in answer to the various questions put to them. In the written statements tiled by S. L. Modi and J. L. Modi, they totally denied the allegations made against them. They also denied that any documents were recovered from their business premises or residential houses as alleged by the prosecution. In his written statement, Rasiklal G. Shah admitted that the various documents were recovered from his possession on 27-6-1962 at the Airlines Hotel as alleged by the prosecution but he stated that these documents were not incriminating in nature. He alleged that he made the statements before the Customs authorities as a result of coercion and also that he was made to sign on blank papers.

(4) Two witnesses were examined on behalf of the accused, one of them D.W. 1, is a Handwriting Expert and he stated that the impugned handwriting and the signatures of S. L. Modi were not those of S. L. Modi. D.W. 2 is a formal witness who was examined to prove the signature of Shri H. L. Anand, Advocate, on a consideration of this evidence, the learned Magistrate acquitted J. L. Modi of all the charges framed against him but convicted S. L. Modi and Rasiklal G. Shah under section 120-B I Pc read with section 167(81) of the Sea Customs Act and sentenced each of them to undergo rigorous imprisonment for two years. He also convicted them under section 167(81) of the Sea Customs Act and sentenced them to undergo rigorous imprisonment for two years each and also to a fine of Rs. 2,000.00 each. The sentences of imprisonment were made to run concurrently.

(5) S. L. Modi and Rasiklal G. Shah preferred appeals against their conviction and sentences passed against them. The learned Additional Sessions Judge, who heard these appeals, held that the evidence on record simply cast suspicion as to the guilty of the accused and that the case against them was doubtful. thereforee, giving the benefit of doubt, he set aside their conviction and the sentences passed against them. The present appeals are filed by the State by special leave against the acquittal of the accused by the learned Additional Sessions Judge.

(6) Before considering the various contentions raised by the State as well as by the respondents and also before considering the evidence in this case, it is desirable to take note of the legal position with regard to appeals against acquitable and this legal position has been stated in the following terms by the Supreme Court in Mathai Methews v. The State of Maharashtra, : (1970)3SCC772 .

'IT is now well-settled that the power of an appellate court to review evidence in appeals against acquittal is as extensive as its powers in appeals against convictions. It is also well settled that before an appellate court can set aside the order of acquittal, it must carefully consider the reasons given by the Trial Court in support of its order and must give its own reasons to reject those reasons. If a finding reached by the Trial Judge cannot be said to be on unreasonable finding them the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the basis of the material on record. It should bear in mind the presumption of innocence of the accused and the fact that the Trial Judge had the advantage of seeing and hearing the witnesses, la brief, the appellate court should not disturb an order of acquittal except on very cogent grounds.'

(7) Before considering the evidence in this case in the light of the rule laid down by the Supreme Court, we shall have to dispose of the objections raised by Shri H. L. Anand, learned counsel for S. L. Modi, respondent- with regard to the validity of the sanction given, by the Government for the prosecution of the respondents for an offence under section 120-B Indian Penal Code '. The learned counsel challenges the validity of the sanction on two grounds, namely. :-

(I)that it was not given by a competent authority, and (ii) that the sanctioning authority did not apply its mind to the evidence against the respondents before giving sanction for their prosecution,

(8) EX.P.W. 1 /B is the order of the Chief Commissioner, Delhi, sanctioning prosecution of the respondent. This order is signed by Shri K. M. L. Gupta, Under Secretary (Home), Delhi Administration, under the authority of the Chief Commissioner, Delhi. It is contended that the Chief Commissioner, Delhi, was not competent to sanction the prosecution and that the sanction under section 196A Criminal Procedure Code . has to be given by the State Government and that under section 2(6)(c) of the General Clauses Act, State Government in the Union Territory of Delhi would mean the Central Government or the President. This contention has no merit in view of the notification No. F. 126/137 dated 1-4-1937 issued by the Governor General in Council in pursuance of section 94(3) of the Government of India Act 1935. According to this notification, the Chief Commissioner was authorised to continue to discharge all functions which he was discharging immediately before the coming into force of the Government of India Act, 1935 until they were revoked. Admittedly, the authority to carry on such functions has not been revoked. thereforee, the Chief Commissioner was competent under section 196A Criminal Procedure Code . to sanction the prosecution of the respondents.

(9) With regard to the second ground on which the sanction has been challenged, the evidence of Public Witness 1 is relevant. He is Mr. R. P. Mathur, Assistant, Home Department, Delhi Administration. He stated that a letter of request, Ex. Public Witness 1/A was received from the Collector of Central Excise and Customs on 21-12-1962 requesting the Chief Commissioner to sanction the prosecution of the seven persons named in the complaint. He further stated that along with Ex. Public Witness 1/A. a draft of the sanction order was also received from the Collector of Customs. These documents were placed before the Chief Commissioner along with a note containing the brief facts as disclosed in Ex. Public Witness 1/A. He further stated that on the basis of the facts so set out, the draft sanction order was approved by the Chief Commissioner and that the Chief Commissioner gave the requisite sanction and the sanction order itself was signed by Shri Gupta in pursuance of the order of the Chief Commissioner under Rules of Business of Delhi Administration. The evidence of Public Witness I would, thus, indicate that the letter of request, Ex. P.W. 1/A. was placed before the Chief Commissioner for his consideration for the purpose of sanctioning the prosecution of the respondents. The sanction order Ex. Public Witness 1/B itself indicates that all the facts and the evidence referred to in the letter, Public Witness 1/A, were considered by the Chief Commissioner before he sanctioned the prosecution of the respondents. Ex. Public Witness I/A itself contains a narration of all the facts which constitute the various offences including the offence of criminal conspiracy alleged against the respondents and it also referred to the evidence in the possession of the Customs authorities in proof of these facts. The learned counsel, Shri H. L. Anand, however. contends that the sanction order does not disclose that the Chief Commissioner had actually considered the evidence which was in the possession of the Customs authorities before passing the sanction order and that the sanction order was invalid on that account. According to the learned counsel, the sanction, order does not satisfy the rule laid down by the Supreme Court in Jaswant Singh v. State of Punjab : 1958CriLJ265 (2) The rule laid down by the Supreme Court is as follows:-

'THE sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. The object of the provision turn sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden.'

(10) The above rule has to be read with the rule laid down by the. Privy Council in Gokulchand Dwarkadas Morarka . The King which was quoted with approval by the Supreme Court That rule is as follows :--

'IN their Lordships' view. to comply with the provisions of Cl. 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since Cl. 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the government have an absolute discretion to grant or withhold their sanction.'

(11) After quoting the above rule laid down by the Privy Council, their Lordships of the Supreme Court proceeded to make the following observations:-

'IT should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and thereforee unless the matter can be proved by other evidence, in the sanction ''itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case.'

The observation of their Lordships of the Supreme Court when read with the observations of the Privy Council do not support the contentions of the learned counsel that the sanction order should not merely disclose that all relevant facts were considered by the sanctioning authority but that it should also disclose that the sanctioning authority had applied its mind to the evidence in proof of these facts. The word 'evidence' used by their Lordships of the Supreme Court, in our view, does not mean the evidence as defined in the Evidence Act and it only means the relevant facts which disclose a prima facie case against the respondents for the offence for the prosecution of which the sanction was required. In our view, the facts contained in Ex, Public Witness 1/B sufficiently make out a, prima facie case against the respondents and others for an offence under section 120-B Indian Penal Code read with section 167 (81) of the Sea Customs Act and the sanction order Ex. Public Witness I/B itself discloses that all these relevant facts were taken into consideration by the Chief Commissioner. thereforee, the sanction order does not suffer from any infirmity,

(12) We now proceed to consider the evidence in this case. The main evidence consists of the evidence of Public Witness 27, Charles Maloney. Admittedly, he was an accomplice and he was also prosecuted separately under section 120-B Indian Penal Code and also under section 167(81) of the Sea Customs Act. He pleaded guilty to these charges and was convicted for the above offences and sentenced to undergo rigorous imprisonment for six months. Before considering his evidence, the rule regarding the evidence of an accomplice has to be borne in mind. This rule has been stated by the Supreme Court in The State of Bihar v. Basawan Singh A.T.R. 1958 S.C. 500) in the following terms :-

'THE uncorroborated evidence of an accomplice is admissible in Jaw; but it has long been a rule of practice, which has virtually become equivalent to a rule of law, that the Judge must warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice. Where the offence is tried by a Judge without the aid of a. jury, it is necessary that the Judge should .give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.'

(13) The nature of the corroboration that may be required before acting upon the evidence of an accomplice has been explained by the Supreme Court in the following terms :-

'INDEPENDENT corroborartion 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.'

We shall now proceed to consider the evidence of Charles Maloney in the light of the rule laid down by the Supreme Court.

(14) This is what, in brief, Public Witness 27 stated in his evidence, it was in early 1961 that some money-exchangers met him in London and asked him if he was interested in doing business in bullion smuggling. He told them that he was not interested. But those persons persuaded him to meet some of their friends, namely, Kassab and Baldi. Subsequently he met them and they asked him if he was interested in smuggling gold into India. He replied in the negative. He again happened to meet Kassab in Beirut in the company of Hoory. They again asked him if he was willing to smuggle gold into India on their behalf and they also asked him to meet S. L. Modi at Bombay. They also gave him the telephone number of Modi. He arrived at Bombay on the 20th August- 1961 and contacted S. L. Modi on the telephone on the number given by Kassab and Hoory. He, thereafter, met S. L. Modi at the Volga Restaurant and the latter persuaded him to do business in smuggling for them and he was assured by him that the business was very safe. He met S. L. Modi again in Bombay on a subsequent occasion at the latter's house and on that occasion, J. L, Modi and Rasiklal G. Shah were also present. They disclosed the modus operandi fur smuggling the gold into India and for delivering the gold either to S. L. Modi or to his agents. If he arrived at Bombay, he was asked to telephone to S. L, Modi at the number already given to him and if he arrived at Delhi, then, he was told that he. would be met by one of his agents at Ashoka Hotel where he would be staying and that he was to follow the instructions given to him by the said agent. He arrived at Delhi from Beirut on 2nd February, 1962 bringing 12 Kilos of gold which was delivered to him by Kassab and Hoory at Beirut. He carried that gold in a special jacket which was also supplied to him by Kassab and Hoory and which was worn under his clothes. On this occasion, he stayed in the Ashoka Hotel and he was met at the said Hotel by Rasiklal G. Shah. He was then taken to another room in the same Hotel where S. L. Modi was staying and he handed over the

(15) Before considering whether the evidence given Public Witness 27 is corroborated by other independent evidence, it is necessary to consider whether his evidence itself is worthy of credence because it is only if this evidence satisfies this initial test that one has to seek for corroboration of his evidence by other independent evidence. If his evidence is of such a nature that. on the face of it, it is unacceptable, then there is no need to seek coronation by other independence evidence. The evidence of Public Witness 27 is challenged on two ground, namely :-

(I)that his evidence was the result of a promise or an inducement held out by the Customs authorities for treating him leniently for the offence committed by him, and (ii) that his evidence shows that he is not a witness of truth inasmuch as he has suppressed material facts and has also made improvements from his earlier statements with a view to implicate the respondents.

(16) In support of the first contention, it is pointed out that contrary to the usual practice for the levy of fine on persons found in the possession of contraband, no fine was levied by the Customs authorities upon Public Witness 27 even though he was found to be in possession of such a large quantity of smuggled gold as 15 Kilos, worth Rs. 1.80.000.00. It is further pointed out that Public Witness 27 was prosecuted separately from the other co-conspirators and he pleaded guilty to the charges framed against him and was sentenced to suffer rigorous imprisonment for six months which according to the learned counsel, was a very lenient sentence. The matter of sentence is entirely within the discretion of the Court and it would not be proper to suggest that the Customs authorities, had influenced the Court to award a lenient sentence against Public Witness 27. So far as the lew of fine is concerned, it is also a matter left to the discretion of the Customs authorities, although it is admitted that the usual practice is to levy fines. It is Quite possible that the Customs authorities exercised their discretion in favor of P.W. 27 with a view to persuade him to give evidence against the persons on whose behalf he had smuggled the gold. This anxiety on the part of the Customs authorities is quite natural and understandable, because their purpose would not be served by merely prosecuting the person who was used as a tool, leaving the persons who were really responsible for these smuggling activities free to carry on such activities probably with the help of another tool like Public Witness 27. The Customs authorities would naturally be anxious to get at the persons who were carrying on these activities so that it may not be possible for them to continue such activities in the future. This circumstance by itself would not justify the rejection of Public Witness 27's evidence as that of a person interested in falsely implicating the respondents. It must be remembered that the Customs, authorities were themselves unaware that the respondents were the persons who were engaged in smuggling gold into India and smuggling Indian and foreign currency out of India, They were not aware of their identity until Public Witness , 27 himself disclosed their identity to the Customs authorities. It cannot, thereforee, be said that the Customs authorities wanted somehow to implicate the respondents and induced Public Witness 27 to give evidence against them. It must also be remembered that Public Witness 27 was not treated as an approver. He was not pardoned for the offence committed by him and he did not escape the consequences of such offences. It must also he remembered that Public Witness 27 was giving evidence long after he had served out the sentence awarded against him. The Customs authorities had no hold whatever over Public Witness 27 at the time he gave evidence in the Court against the respondents. Public Witness 27 himself had no motive whatever to falsely implicate the respondents. It is quite possible that P.W. 27 might have suppressed the identity of other persons who were either co-conspirators along with the respondents or who were carrying on smuggling activities independently of the respondents through the medium of Public Witness 27. But the suppression of the identity of such other persons docs not necessarily mean that Public Witness 27 was falsely implicating the respondents, although he knew that they were innocent.

(17) When Public Witness 27 was searched by the Customs authorities on 27-6-62, certain papers were found in his possession. Some of these papers contained the names of Poonam Shah, Thadani and Abbas Malik. On being questioned by the Customs authorities with regard to the identity of these persons, Public Witness 27 stated that he did not know. This is obviously not a true statement because, in his evidence, Public Witness 2/ admitted that he might have known all these persons and further that his acquaintance was of the same nature as his acquaintance with the respondents. In other words, he admitted in his evidence that these persons were also engaged in smuggling activities similar to those of the respondents and that he was helping those persons in such activities On the strength of this admission, the learned counsel. Shri H. L. Anand, contends that Public Witness 27 has not disclosed all the true facts in his evidence and that he has deliberately suppressed some of the facts which were within his knowledge and that thereforee, Public Witness 27 was not a witness of truth. As already stated, it is obvious that Public Witness 27 was not willing to disclose the identity of the persons other than the respondents with whom he was. obviously working for smuggling gold into India. But this unwillingness on his part to disclose the identity of all the persons who were engaged in such activities to his knowledge does not necessarily mean that what he had states about the respondents was not true. There is no reason to believe that by implicating the respondents, Public Witness 27 was shielding the real culprits and was implicating innocent persons. For all that one knows Poonam Shah. Thadani and Abbas Malik might also be concerned along with the respondents in the criminal conspiracy to smuggle gold into India. But the respondents cannot escape their liability even if some other persons who are also working as co-conspirators with them were not brought to book.

(18) With regard to the alleged improvements said to have been made by P.W. 27 in his evidence, it is pointed out that in his first statement Ex.P.W. 3/D recorded on 27-6-1962, he had not referred to all the occasions on which he had smuggled gold into India on behalf of the respondents. But in his second statement Ex.P.W. 27/2 recorded on 30-6-1962. Public Witness 27 has referred to all these occasions. It cannot, thereforee, be said that Public Witness 27 has made improvement in his evidence for the first time. Another improvement pointed out by the learned counsel is that none of his statements Exs. Public Witness 3/D or Ex. Public Witness 27/2, made by Public Witness 27 referred to his meeting with S. L. Modi at the telegraph office. This is a very minor omission on his part and it cannot be said on the basis of this omission that Public Witness 27 has made improvements in his evidence. It must be remembered that all the essential facts were disclosed by him in the very first statement recorded on 27-6-1962 at a time when the respondents had not even been apprehended by the Customs authorities. Although his statements. Ex.P.W. 3/D and Ex.P.W. 27/2 were not in the nature of independent evidence which can be used to corroborate the evidence of an accomplice, still these statements may be used. to corroborate the evidence of Public Witness 27 under section 157 of the Indian Evidence Act.

(19) There is, thereforee, nothing in the evidence of Public Witness 27 which would warrant the rejection of his evidence as being itself not worthy of credit. We must, thereforee, proceed to consider whether this evidence is corroborated by other independent evidence as indicated by the Supreme Court in The State of Bihar v. Bhagwan Singh ( supra), (4). This evidence has been tabulated both by the trial Court as well as the appellate Court under different heads and we may also adopt the same classification. The first category of such evidence consists of the documents which were recovered from the possession of Public Witness 27 on 27-7-1962, namely, a pocket diary Ex.P.W. 3/C/8, and small bits of papers Ex.P.W. 3/C/1 to 3/C/12. The pocket diary contained an entry which was said to be in the handwriting of S. L. Modi. This entry gave the description of the watch which S. L. Modi is said to have asked Public Witness 27 to bring for him. Public Witness 27 has stated that this entry was made in his presence by S. L. Modi himself. Public Witness 44, a govt. handwriting expert, examined on behalf of the prosecution, stated in his evidence that he had compared this entry in the pocket diary with the admitted or proved handwriting of S. L. Modi and that, in his opinion, the entry was in the handwriting of S. L. Modi. On the other hand, the defense examined D.W. 1, a private handwriting expert, who stated that the said entry was not in the handwriting of S. L. Modi. The learned appellate Court has merely rejected the evidence of both the handwriting experts on the ground that the evidence of the one cancels the evidence of the other. He has not applied his own mind to the reasons given by the two handwriting experts and he has not come to his own conclusions regarding the impugned handwriting. On going through the reasons given by the two handwriting experts and after comparing the admitted writing of S. L. Modi with the impugned writing, we have formed our own opinion that the entry in the pocket diary is in the handwriting of S. L. Modi. This entry would, thereforee, corroborate the evidence of Public Witness 27 to the effect that on one of his visits, S. L. Modi had asked him to bring a gold watch for him of the description given in the pocket diary. The pocket diary also contains a telephone number as well as the address of S. L. Modi at Bombay. Some of the paper which were found in Public Witness 27's possession contained the names and addresses of Rasiklal G. Shah and Harbans Lal at Delhi. The telephone number and the address of Rasiklal G. Shah at Delhi was that of the Airlines Hotel where Rasiklal G. Shah was actually found to be staying on 27-6-1962. The entry in the pocket diary and the papers found in the possession of Public Witness 27 corroborate. The learned appellate Court is clearly wrong in the inference drawn by him that this entry merely proved that the respondents were only known to Public Witness 2/. both the respondents had denied any acquaintance with Public Witness 27 and, thereforee, these documents found in the possession of Public Witness 27 are in the nature of incriminating evidence against the respondents.

(20) The fact that these documents as well as the statements made by P.W. 27 before the Customs authorities disclosed the presence of Rasiklal G. Shah at Airlines Hotel is also a strong piece of corroborative evidence against the respondents. Immediately after obtaining this information, the Customs authorities proceeded to the Airlines Hotel and found Rasiklal G. Shah in the said Hotel. A number of documents were recovered from the possession of Rasiklal G. Shah including three letters, namely, (1) a letter in English addressed to Andre and (2) two letters in Gujarati addressed to Rasiklal G. Shah. P.W. 27 had stated in his evidence that Andre was the code name for him. This letter is written in the code language and in this letter, P.W. 27 has been instructed to deliver 15 Kilos of gold to Rasiklal G. Shah. This letter would establish a direct connection between Rasiklal G. Shah and the smuggling of 15 Kilos of gold by Public Witness 27 on 27-6-1962. In the two letters in Gujarati which are marked as Ex. Public Witness 6/C and Ex. Public Witness 6/D, instructions are given to Rasiklal G. Shah to meet Public Witness 27 on 27-6-1962 and to ask him to clarify the shortage in the currency which he had delivered to Latif Hoory. The words used in these letters, are also in code. In his examination under section 342 Criminal Procedure Code .. Rasiklal G. Shah admitted that these letters were recovered from his possession but he added that these letters were received from Poonam Shah. When he was examined by the Customs authorities on 27-6-1962 and 28.6.1962, Rasiklal G. Shah admitted that these letters were received from S. L. Modi. S. L. Modi himself, in his statement given to the Customs authorities on 3-7-1962 admitted having written two letters in Gujarati to Rasiklal G. Shah on 25-6-1962. These two letters bear the same date. Although S. L. Modi has not specifically admitted in his statement recorded on 3-7-1962 that the two Gujarati letters which he admitted to have written to Rasiklal G. Shah were the same as were found in the possession of Rasiklal G. Shah, there can be no doubt that S. L. Modi himself had written these two letters to Rasiklal G. Shah. In this connection, we may note that when the respondents were examined under section 342 Criminal Procedure Code . They simply stated in answer to every one of the questions put to them that they would file a written statement. It is only in the written statements filed by them that they have given answers to the questions put to them by the Court. We cannot, thereforee, treat such answers as answers given by them under section 342 Cr.P.C. It is obvious that the written statements were filed by the respondents after consulting their lawyers and that, as a matter of fact, these written statements were prepared by the lawyers. The answers given in these written statements would, thereforee, amount to answers given by the lawyers themselves. In effect, it is not the respondents who were examined under section 342 Criminal Procedure Code . but their lawyers. Such a practice has been deprecated by the Supreme Court as not being proper compliance with the provisions of section 342 Criminal Procedure Code . in Bibhuti Bhusan Das Gupta and another v. State of West Bengal A.LR. 1969 S.C. 381. But even in the written statements filed by S. L. Modi, he has not categorically denied that he had written these two Gujarati letters to Rasiklal G. Shah. The absence of such specific denial considered along with his admission made in his statement before the Customs authorities on 3-7-1962 would clearly justify the inference that these two letters were in fact written by S. L. Modi. These two letters clearly implicate both the respondents in the smuggling activities which were carried on through the medium of Public Witness 27. These documents, which were found in the possession of Rasiklal G. 'Shah, would also corroborate the evidence of Public Witness 27.

(21) We have made use of certain portions of the statements made by the respondents before the Customs authorities. A contention has been raised against the use of these statements on the ground that these statements are not admissible in evidence. Reliance has been placed upon the decision of Privy Council in Pukalu N'aruycma Swami v. Emperor (6) in which the word 'confession' was defined in the following terms :-

'THE word 'confession^ as used in Evidence 'Act cannot be construed as meaning a statement by an accused 'suggesting the inference that he committed' the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact. even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact which is true would negative the offence alleged to be confessed.'

(22) These two letters clearly implicate both the respondents in the smuggle does not fall within the definition of a confession is not admissible in evidence. There is no doubt that neither the statement of S. L. Modi nor the two statements of Rasiklal G. Shah amount to confessions as defined by the Privy Council. The statement of S. L. Modi is wholly exculpatory in nature. The statements of Rasiklal G. Shah. though incriminating in nature, do not amount to confession. But even if these statements are not admissible in evidence as confessions, portions thereof, which are in the nature of admissions, are admissible in evidence. That the decision of the Privy Council in Pakala Narayana Swami's case does not stand in the way of admitting such admissions in evidence was held by the High Court of Sind in Mohammad Bakhsh v. Emperor A.I.R. 1941 Sind 129 . Davis C.J. who delivered the main judgment of the Court, considered the effect of the decision of the Privy Council in Pakala Narayana Swami's^) case and while holding that the statement of the accused in the case before him did not amount to a, confession and was not admissible as such, however, held that the statement amounted to an admission and was admissible in evidence as such, this is what he has stated :-

'BUT we do not see how his statement can be excluded either from evidence or from consideration merely because it is not a full confession or is what we might call a partial confession. We think the statement made by the appellant in his retracted confession against his interests are admissible under Ss. 18 to 21, Evidence Act, xxxxxx. On the other hand incriminating statements not admissible as confessions in evidence will not necessarily be excluded. They may be admissible as admissions against interest under Ss. 18 to 21, Evidence Act. 'We do not think it can be said that Ss. 18 to 21, Evidence Act, do not apply to admissions in criminal cases.'

(23) No decision contract has been cited by the learned counsel for the respondents. thereforee, the admissions made by S. L. Modi and Rasiklal G. Shah in their respective statements recorded by the Customs authorities to the effect that the two Gujarati letters were written by S. L. Modi to Rasiklal G. Shah are admissible in evidence under section 18 of the Evidence Act.

(24) Even if these statements made by the respondents before the Customs authorities are altogether excluded from the consideration, the letter in English and the two letters in Gujarati which were found in the possession of Rasiklal G. Shah, contain internal evidence which is sufficient in our view to prove their authorship. In Mobarik Alt Ahmed v. The State of Bombay 0043/1957 : 1957CriLJ1346 , the Supreme Court has held as follows:-

'THE proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court xxxxxxxxx In an appropriate case the Court may also be in a position to judge whether the document constitutes a genuine link in the chain of correspondence and thus to determine its authorship.'

(25) The contents of these documents, Sxs. Public Witness 6/C, D and E are sufficient in our view to prove that they were written by S. L. Modi. because they corroborate the evidence given by Public Witness 27. The next category of evidence consists of the recovery of various documents from the business and residential premises of S. L. Modi on 27-6-1962. According to the prosecution, soon after the statements of P.W. 27 and Rasiklal G. Shah were recorded by the Customs authorities on 27-6-1962, the Customs authorities in Bombay were contacted and asked to search the business and residential premises of S. L. Modi at Bombay and in pursuance of this information, the Customs authorities at Bombay had searched the business and residential premises of S. L. Modi on the same day. The factum of the search is not denied by S. L. Modi but he denies the alleged recovery of the various documents from his house as well as from his office, Public Witness 11, Shri Dominac Raphael D'cost Preventive Officer, Bombay Customs, is the person who carried out these searches and Public Witness s. 12 and 36 are said to have been present at the time of the search. The evidence of these witnesses is challenged on the ground that Public Witness 11 himself is a Customs official and. threfore, an interested witness and that Public Witness s. 12 and 36 are neither the residents of the locality where the search was made nor were they respectable witnesses. The evidence of Public Witness 11 cannot be rejected merely on the ground that he was a Customs official. Further, he was not primarily concerned with the investigation of this offence and was acting only on the instructions of the Customs authorities at Delhi. His evidence is corroborated by the evidence of two witnesses who are not Customs officials. One of them, namely, Public Witness 36. Shri Chandu Lal Gopaiji, is a resident of the locality as he is an employee in a radio shop situated at a distance of about mile from Indra Bhavan, the business premises of S. L. Modi which was searched. Simply because he is an employee in a radio shop, it cannot be said that he is not a respectable witness. The other witness, Public Witness 12, though not a resident of the locality, happened to visit that locality and being a Customs Clearance broker, he was known to Public Witness 11 and was called to be present at the time of the search. Although he is a person who. in the course of his business, may have to deal with the Customs officials, he is not a customs official himself nor is he a person who is under the influence of the Customs authorities. His evidence cannot he rejected on the ground that he is not a respectable or an independent witness. The circumstances under which the search was made i/ have also fo be borne in mind. As already stated, Public Witness 11 had to carry out the searches immediately on receipt of the information from Delhi and if he delayed the searches in order to secure the presence of independent residents of the locality, the purpose of the search might have been frustrated, because the moment S. L. Modi got information about the search, he would make haste to destroy all the incriminating evidence that might be found in his business or residential premises, Considered in this background, we see no valid reason to say that the search was not made in compliance with the provisions of section 103 Cr.P.C.

(26) One of the documents seized from the business premises of S. L. Modi was file Ex.P.W. II/.T, containing 34 sheets. This file also contained a code. The words of this code were used in the letters Exs. P.W. 6/C. D and E as well as in other telegrams and cables which will he referred to hereinafter. Public Witness 27 also has referred to this code in his evidence and thererorc. the recovery of this code from the business premises of S. L. Modi is a strong piece of corroborative evidence. The other documents which were recovered from the business and the residential premises of S. L. Modi included letter-heads of S. L. Modi which show that his telegraphic address was Jev Modi. Public Witness 27 has also referred to this telegraphic address in his evidence and this telegraphic address is found on several telegrams and cables which were sent from Beirut and other places. These letter-heads also contained the telephone number as well as the office address of S. L. Modi. The pocket diary found in the possession of Public Witness 27 contained the same telephone number and the same address and Public Witness 27 has stated in his evidence that they were the telephone number and the office address of S. L. Modi. The recovery of all these documents from the business and the residential premises of S. L. Modi cannot be doubted and these documents afford sufficient corroboration to the evidence of P.W. 27 regarding the complicity of S. L. Modi in the gold smuggling activities.

(27) The next category of evidence consists of the telegrams and the cables Exs. Public Witness 21 series. Some of these telegrams and the cables are shown to have been dispatched from Beirut and addressed to the telegraphic address of S. L. Modi. Some other telegrams and cables are addressed to the telegraphic address of Kassab and Latif Hoory al Beirut. These telegrams and cables contain code words which were found in the code recovered from the business premises of S. L. Modi Some of these telegrams and cables referred to the visits of Public Witness 27 lo Bombay or Delhi and to the dispatch through him of various quantities of gold and also of Indian and foreign currency. The dates of these telegrams and cables coincide with the dates of the visits of Public Witness 27 as spoken to by him in his evidence. It is no doubt true that it has not been proved by any external evidence that these telegrams and cables were sent by S. L. Modi and Rasiklal G. Shah on the one hand and Kassab and Hoory on the other. Under the circumstances, is would he impossible to adduce such evidence. But the contents of these telegrams and cables themselves prove their authorship and these telegrams and cables considered along with the evidence of Public Witness 27 are sufficient to prove the existence of a criminal conspiracy between the respondents and Kassab and Latif Hoory for smuggling gold into India and smuggling Indian and foreign currency out of India through the agency of Public Witness 27.

(28) Then, finally, we come to the entries in the hotel registers at Bombay and Delhi and also the entries in the passengers' lists of the Indian Airlines Corporation which prove that on the dates when. according to Public Witness 27, he had met S. L. Modi and Rasiklal G, Shall at Delhi, these persons had in fact travelled from Bombay to Delhi by air and that they had also stayed in the hotels where Public Witness 27 had met them. It is no doubt true that the employees of hotels, who have proved these entries, or the officers of the Indian Airlines Corporation who have proved the passengers' lists have not been able to identify S. L. Modi or Rasiklal G. Shah as the persons who had stayed in their hotels or who had travelled in their planes, as the case may be. But these entries do probablise the evidence of Public Witness 27 and they show that P.W. 27 is speaking the truth when he said that he had met the respondents on various occasions. These entries also prove that Latif Hoory had come to Bombay and to Delhi and stayed in hotels and that he had some occasions telephoned to S. L. Modi. These entries, thereforee. prove the existence of a connection between S. L. Modi and Latif Hoory. These entries, by themselves and considered independently of the evidence of Public Witness 27 may not be in the nature of incriminating evidence, but when these entries are considered along with the other evidence in the case, they constitute a link in the chain of evidence against the respondents.

(29) In appreciating the significance of the several categories of circumstantial evidence narrated in the foregoing paragraphs, the Court has not merely to consider the effect of each piece of circumstantial evidence separately but has to consider the cumulative effect of all the circumstantial evidence. In State of Andhra Pradesh v. I. B. S. Prasada Rao and others : 1970CriLJ733 , the above principle has been enunciated in the following terms :-

'FURTHER it is not necessary that every one of the proved facts must in itself be decisive of the complicity of the accused or point conclusively to his guilt. It may be that a particular fact relied upon by the prosecution may not be decisive in itself and yet if that fact, along with other facts which have been proved, tends to strengthen the conclusion of his guilt, it is relevant and has to be considered. In other words, when deciding the question of sufficiency, what the Court has to consider is the total cumulative effect of all the proved facts each one of which reinforces the conclusion of guilt, and if the combined effect of all those facts taken together is conclusive in establishing the guilt of the accused, the conviction would be justified even though it may be that any one or more of those facts by itself is not decisive.'

(30) The learned trial Court was right in keeping this principle in mind and where the learned appellate Court went wrong was firstly to consider the effect of each piece of circumstantial evidence independently of the others and not to consider the cumulative effect of all the circumstantial evidence proved against the respondents and secondly not to consider the circumstantial evidence in the light of the evidence of Public Witness 27. The learned appellate Court started by rejecting Public Witness 27's evidence as not being worthy of credit. This is where the learned appellate Court went wrong. Then, ignoring Public Witness 27's evidence, the learned appellate Court has applied the test to the remaining evidence which is applicable to circumstantial evidence and on applying the said test, he has held that where the circumstantial evidence is capable of being interpreted both in favor of as well as against the accused, the interpretation which is in favor of the accused has to be accepted. As already stated, this is not a case of circumstantial evidence alone. This is a case of the evidence of an accomplice which, if accepted as credit worthy, requires corroboration of material facts by other independent evidence. The learned appellate Court obviously did not keep this rule in his mind. His conclusion that the prosecution evidence was not sufficient to prove the guilt of the accused beyond reasonable doubt is clearly wrong. On a consideration of entire evidence, we are in entire agreement with the conclusion reached by the learned Trial Court, namely, that the evidence of Public Witness 27 is in itself credit worthy and that it is sufficiently corroborated by other independent evidence. and that the entire evidence proves the guilt of the accused for the offences with which they are charged. The judgment of the learned appellate Court acquitting the respondents is set aside and the respondents are convicted under section 120-B Indian Penal Code read with section 167 of the Sea Customs Act and also under section 167 of the Sea Customs Act.

(31) There remains the question of sentence. So far as S. L. Modi is concerned, he is an important member of the criminal conspiracy and all the gold that was smuggled into India by Public Witness 27 was delivered to him. The smuggling activities themselves appear to have been carried on on a large scale. We, thereforee, sentence him to undergo rigorous imprisonment for two years under section 120-B Indian Penal Code and also to undergo rigorous imprisonment for two years under section 167 of the Sea Customs Act and to pay a fine of Rs. 2,000 and in default of payment of fine, to undergo rigorous imprisonment for a further period of six months. So far as Rasiklal G. Shah is concerned, he is a less important member of the criminal conspiracy and he appears only to be tool in the hands of S. L. Modi, though not an innocent tool. He deserves a more lenient sentence than the one awarded against S. L. Modi. He is, thereforee, sentenced to undergo rigorous imprisonment for one year under section 120-B Indian Penal Code and to undergo rigorous imprisonment for one year under section 167 of the Sea Customs Act and also to pay a fine of Rs 1,000 and in default of payment of fine, to undergo rigorous imprisonment for a further period of three months. The substantive sentences of imprisonment will run concurrently.

(32) In the result, the appeal is allowed.


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