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M.G. Venugopalan Vs. Edayil Veettil Govindan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Judge
Reported in1976CriLJ165
AppellantM.G. Venugopalan
RespondentEdayil Veettil Govindan and anr.
Cases ReferredBalkrishna v. State of West Bengal.
Excerpt:
- - the testimony of the above witnesses clearly establishes the fact of the recovery of 25 bars which according to the complainant was gold. 107 of the customs act includes a person who is subsequently arraigned as an accused in a trial in respect of smuggled gold, and that when such a person is found in possession of smuggled gold he being acquainted with the facts and circumstances of the case would be the best person to throw light with regard to such gold admitting fact, made by such a person has the force of an extra judicial confession and can be acted upon if not otherwise tainted. thus there is reliable legal evidence to show that m- o......who tried the case held that the complainant did not succeed in proving beyond doubt that gold bars were taken into custody from the 1st respondent and also that the article stated to have been seized was foreign gold. in the result the 1st respondent was found not guilty and acquitted. the assistant collector of customs and central excise integrated divisional office, kozhikode hag filed the present appeal,2. the point for consideration is whether gold bars have been recovered from the 1st respondent. the 1st respondent in his statement under section 342, civil p.c. denied the occurrence in toto. he however, admitted that he had given a statement to the customs officials on 5-1-1971 but would add that it was taken by compulsion. the guilt or innocence of the 1st respondent will.....
Judgment:

Kumari P. Janaki Amma, J.

1. During the night of 4-1-1971 the Superintendent of Central Excise, Head Quarters, (Preventive) Cochin and party was on the platform of the Kozihikode Railway Station engaged in detecting offences under the Customs Act, At 11.55 P M. when the Mangalore-Cochin Express stopped at the Railway Station the 1st respondent Edavil Veetil Govindan alighted from the Train. He was carrying with him a bag. The Superintendent and party felt some suspicion and detained him- He was taken to the Office room of the Ticket Examiner. The baa in his possession was examined. The officers found 25 biscuit shaped gold slabs with foreign markings 'Johnson Matihav 9990 LONDON 10 TOLAS' kept concealed in a Plastic cover underneath a soiled turkish towel and a 'Kaili' inside the bag. He had a third class Express Ticket with him from Cheruvathur to Kozhikode. A mahazar was prepared and the sold was seized. He was taken to the Customs Office, and his statement was recorded on 5-1-1971. The 1st respondent was found to have committed offences punishable under Section 135 of the Customs Act, 1962 and under Section 85 (ii) and (iii) of the Gold (Control) Act, 1968. Complaints were accordingly filed both under the Customs Act and under the Gold Control Act. They were clubbed together. The complainant examined 8 witnesses. The Additional Judicial Magistrate First Class, Kozhikode who tried the case held that the complainant did not succeed in proving beyond doubt that gold bars were taken into custody from the 1st respondent and also that the article stated to have been seized was foreign gold. In the result the 1st respondent was found not guilty and acquitted. The Assistant Collector of Customs and Central Excise integrated Divisional Office, Kozhikode hag filed the present appeal,

2. The point for consideration is whether gold bars have been recovered from the 1st respondent. The 1st respondent in his statement under Section 342, Civil P.C. denied the occurrence in toto. He however, admitted that he had given a statement to the Customs Officials on 5-1-1971 but would add that it was taken by compulsion. The guilt or innocence of the 1st respondent will depend to some extent upon the admissibility or otherwise of the statement and also the oral evidence adduced in the case. M. O. 1 series are the twenty five gold bars alleged to have been recovered from the 1st respondent. P.Ws. 1, 3 to 5 and 7 are the officials of the Customs Department. P, W. 1 is the Superintendent, Central Excise, Cochin who led the Excise party. He has sworn to the facts mentioned in the complaint in all material detail, that the 1st respondent was found to be in possession of a bas which was suspected to contain contraband articles, that he was taken to the Ticket Examiner's room and was found to be in possession of articles including 25 bars of gold with foreign markings and that they were taken into custody under a mahasar, Ext. P-l. The witness has also stated that at about 5 A. M. on 5-1-1971 the statement of the 1st respondent was recorded by P- W. 5 Mohandas, Inspector of Central Excise in his presence and that the same statement hag been attested by him. Ex. P-3 is the statement so attested. The gold bars were examined by P.W. 2 a dealer in sold. P.W. 2 certified them as of 24 carat purity. Ext. P-2 is the certificate. Subsequently the sold bars were examined by P.W. 3 the Chemical Examiner. Customs House, Cochin, who issued Ext. P-6 certificate to the effect that the gold was of 24 carat purity. P.W. 5 Mohandas and P.W. 7 Raghavan Nambiar were Inspectors of Central Excise at the relevant time and they were present at the Railway Station along with P.W. 1 and assisted P.W. 1 in the seizure. Both these witnesses have corroborated the testimony of P.W. 1 in all material particulars. P. W- 6 wag a Ticket Examiner of the Southern Railway who was present at Calcutta Railway Station on 4-1-1971. It was to his office room that the Excise officials took the 1st respondent for the purpose of search. He has attested Ext. P-l mahazar prepared at the time.. He supports the case of the complainant. P.W. 4 was the Assistant Collector of Customs and complainant in the case. The trial Court did not act upon the evidence of the officials on the ground that they were interested in the complaint The Court also held that P.W. 6 the Ticket Examiner was not an independent witness. The learned Magistrate therefore held that the evidence available was insufficient to prove the recovery-

3. I am unable to accept the findings of the learned Magistrate. It is no doubt true that the main evidence consists of the testimony of the officials of the Customs Department. But it cannot be denied that the above witnesses are responsible officers. Their cross-examination does not reveal that they had any motive against the 1st respondent in this case. No reason is put forward as to why they should prefer a false complaint against him. There is also no reason why the testimony of P.W. 6 the Ticket Examiner should be discarded. It is true that he has admitted that on some prior occasions also he had figured as witness in cases under the Customs Act, But being an official of the Railway there is nothing unusual if he happens to figure as witness in cases detected within the Railway Premises. The 1st respondent has a case that this witness does not in fact Drove the recovery of the gold bars from the 1st respondent. This is not correct. The witness has stated in categoric terms that he was present when the Customs Officials seized from the first respondent 25 bars of gold with markings 'Johnson Mathav 9990 10 Tolas', kept in a polythene baa as per Ext. P-l mahazar. The testimony of the above witnesses clearly establishes the fact of the recovery of 25 bars which according to the complainant was gold.

4. The further question is whether the bars that were recovered were really gold bars of 24 carat purity. The evidence on this point is that of P.Ws. 2 and 3. P.W. 2 is a partner of the Dhattatriya & Co., licensed gold dealers. He weighed the gold and also tested its purity. He certified the weight and purity in Ext. P-2. No doubt, this witness has admitted in cross-examination that he does not know what exactly is meant by scientific testing of purity. According to him. he found out the purity following the touch-stone method. Being a person dealing in gold he is competent to speak to the purity of Kold and his opinion is entitled to some weight even though he has not tested the gold as a regular scientist, especially when nothing is put forward to show that his opinion is wrong. P.W. 3 is a Master of Science in Chemistry and has 23 years of experience in the Customs Department as an analyst of sold, and other articles. He has issued the certificate Ext. P-3 certifying the sold as having 24 carat purity. The evidence of this witness was not acted upon by the trial Court only because that he did not mention in the certificate the tests followed by him in finding out the quality and purity of the gold. According to the learned Magistrate unless the specific gravity and furnace tests are followed, the result of examination would not be accurate. But significantly enough this witness was not asked what were the tests conducted by him. He was only asked whether he knew the specific gravity test and the furnace test to which question he answered in the affirmative. It is no doubt true that some of the rulings have referred to the specific gravity and furnace tests as modes of finding out the purity of gold. But nowhere it is stated that the certificate of an expert should contain the particulars of the tests conducted by him. On the other hand in the State of Kerala v. Mammu Musaliar 1974 Ker LT 792 : 1975 Cri LJ 409 (FB) a Full Bench of this Court has held that a Public Analyst under the Prevention of Food Adulteration Act need not state the method adopted or the technical processes involved in analysing the food. The identical principle should apply in the case of the opinion expressed by an expert that an article is gold of particular duality and purity. So long as no definite tests have been prescribed under law it is only a question of proof whether an article alleged to be gold is really sold and whether it is primary sold. It has to be borne in mind that the opinion of an expert on a Point that he is skilled is relevant under Section 45 of the Evidence Act. There is no reason why the evidence of P.W. 3 who is an experienced Chemical Examiner of the Customs department should not be given due weight. No material has been produced to discredit his testimony. No counter evidence is also produced. The evidence of P.Ws. 2 and 3 is sufficient t0 show that M. O, 1 series gold bars are primary Sold as defined in Section 2 (r) of the Gold (Control) Act, 1968.

5 The evidence is and the 1st respondent has himself admitted in Ext. P-3 the statement given by him to P.W. 4 that he was found to be in possession of 25 Hold bars having markings 'Johnson Mathay 9990 LONDON 10 TOLAS'. In Ext. P-3 he states that he was aware that the sold bars were smuggled goods. The learned Magistrate did not act upon the above statement for the reason that the 1st respondent retracted from it. But the statement of the 1st respondent under Section 342 of the Criminal P.C. does not contain any such retraction. On the other hand what is mentioned by him is that he save the statement under duress, Time and again the Supreme Court and the High Courts have held that a statement made by a person before the Officials of the Customs Department is not hit by Section 25 of the Evidence Act and is admissible in evidence. In Ramesh Chandra v. State of West Bengal : 1970CriLJ863 the Supreme Court observed:

The Customs Officer under S. 104 (3) is. it is true, invested with the powers oi an officer-in-charge of a police station for the purpose of releasing any person on bail or otherwise. The expression 'or otherwise' however does not confer upon him the power to lodge a report before a Magistrate under Section 173 of the Code of Criminal Procedure. Power to arani bail, power to collect evidence, and power to search premises or conveyances without recourse to a Magistrate do not make him an officer-in-charge of a police station. Powers are conferred upon him primarily for collection of duty and prevention of smuggling. He is for all purposes an officer of the revenue. Thus a Customs Officer is, under the Act of 1962, not a police officer within the meaning of Section 25 of the Evidence Act and the statements made before him by a person who is arrested or against whom an in-, quiry is made are not covered by Section 25 of the Evidence Act.

The identical principle is laid down in Harbansingh v. State of Maharashtra : 1972CriLJ759 and in Balkrishna v. State of West Bengal. : 1974CriLJ280 . In the latter case it is held that the expression 'any person' in S. 107 of the Customs Act includes a person who is subsequently arraigned as an accused in a trial in respect of smuggled gold, and that when such a person is found in possession of smuggled gold he being acquainted with the facts and circumstances of the case would be the best person to throw light with regard to such gold admitting fact, made by such a person has the force of an extra judicial confession and can be acted upon if not otherwise tainted. It is pertinent to note that Ext. P-3 statement has been attested by P.W. 8 an independent witness who proves the fact of 1st respondent giving such statement. Cross-examination of this witness does not support the case that there has been any coercion or undue influence exercised by the Customs Officials while recording the statement. Ext. P-3 is in line with the details spoken to by the witnesses already referred to. Thus there is reliable legal evidence to show that M- O. 1 series, 25 gold bars were recovered from the 1st respondent at 11.55 p.m. on 4-1-1971.

6. The next point to be considered is whether M. O. 1 series gold bars are of foreign origin. An argument is put forward on behalf of the 1st respondent on the basis of certain rulings that markings on the gold bars may not be conclusive in deciding whether they are bars of foreign origin. These rulings proceed on the footing that the markings are hearsay evidence and should be excluded. But under Section 123 of the Customs Act. when gold is seized under the Act in the reasonable belief that it is smuggled, the burden of proving that it is not a smuggled article is on the person from whose possession it was taken. Therefore in the light of the findings entered above it was up to the 1st respondent to make out from where the cot the gold bars and what is the origin thereof. P.W. 3 who is an experienced Chemical Examiner under the Customs Department has deposed that because of the get up and the seal he could say that M. O. 1 series are of foreign origin. Other officials of the Customs Department who are accustomed to deal with cases of smuggled gold have also given evidence to the same effect. No counter evidence has been adduced by the 1st respondent. There is therefore no scope for doubt that the 1st respondent was in custody or possession of primary gold. It is nor disputed that possession or custody of the gold bars in the circumstances proved is an offence both under the Customs Act as also under the Gold (Control) Act. The 1st respondent is therefore guilty of an offence under Section 135 of the Customs Act and also under Section 85 (ii) of the Gold (Control) Act. He is convicted accordingly. There is however no evidence to show that he had acquired right in the gold. Ext. P-5 his statement shows that he was carrying the gold at the instance of one Abu to be delivered over to him. He is thus not Droved to have committed an offence under Section 85 (iii) of the Gold (Control) Act and is acquitted of that offence.

7. The market value of the gold at the time of seizure is mentioned in Ext. P-4 as Rs. 50,000. The complaints disclose that the sold has been confiscated, that a penalty of Rs. 2.000/- has been imposed under Section 112(b) of the Customs Act and another penalty of Rs. 4,000 has been imposed upon the 1st respondent under Section 74 of the Gold (Control) Act. As already mentioned Ext. P-3 discloses that the 1st respondent was carrying the gold at the instance of one Abu. He was to set a remuneration of Rs. 100/- only. Taking these factors into consideration. I think that the minimum sentence prescribed in Section 85 of the Gold (Control) Act need not be imposed. He is sentenced to simple imprisonment for 3 months under Section 135 of the Customs Act. He is also sentenced to simple imprisonment for 3 months and a fine of Rs. 500/- under Section 85 (ii) of the Gold (Control) Act. In default of payment of fine he will undergo simple imprisonment for one month. The substantive sentence of imprisonment will run concurrently. The appeal is allowed as above.


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