1. Shri D.N. Anerao, Assistant Collector of Customs (preventive), Gujarat at Ahmedabad filed a complaint against the present respondents Maheshkumar Kantilal Soni and Narendrakumar Kantilal Shah and one Fulchand Chandulal Jail for an offence punishable under section 135A/135 of the Customs Act, 1962 (hereinafter referred to as 'the Act' for the sake of brevity), on the allegation that they made preparation to transport silver from Ahmedabad the specified area on the Saurashtra or Kutch sea coast and thereby committed the above offences.
2. The case of the complainant briefly stated is that on 6th February, 1983 the officers of the customs department received a definite intelligence, to the effect that silver was to be transported on that date in the afternoon in a white Ambassador car bearing no. MBE 648 from Ahmedabad to Saurashtra coast for export out of India and the said car would be piloted by a yellow coloured scooter bearing No. GRA 2351. The customs officers along with two panch witnesses started in a Government jeep and kept a watch from a place near Sapna theatre situated on Karkhej road and at about 3.45 P.M. they noticed a yellow coloured scooter followed by a white Ambassador car coming from towards Ahmedabad side and going towards Saurashtra side on National Highway No. 8A, and thereupon they followed the said vehicles in the jeep and after going beyond the railway crossing near Sarkhej village, they found the person who was driving the scooter and the person who was the sole occupant of the Ambassador car talking with each other near the Ambassador car which was stopped on the way. The customs officers found that the Ambassador car was bearing no. MBE 648 while the scooter was having no. GRA 2351, and therefore, interrogated these two persons. The person who was driving the scooter disclosed his name as Narendra Kantilal Shah, wile the person who was driving the Ambassador car disclosed his name as Mahesh Kantilal Soni. On searching the car, they found several silver slabs lying under the front and rear seat of the said car in addition to some silver slabs lying in the dicky of the said car, which was opened with the key which was lying in the said car. These two persons were not in possession of any document showing any silver transaction. No such document was also found from the car. These two persons were then taken to Navrangpura Customs Office for detailed search and further investigation. The detailed search in the persence of the panch witnesses revealed presence of silver ingots and slabs, as stated earlier. Statements of these two persons were recorded by the customs officers and thereafter criminal complaint was filed against the aforesaid three persons as stated above. It was registered as Criminal Case No. 2121 of 1984. Evidence of the complainant Dattatreya Anerao was recorded at Ex. 4, while that of Ajaypalsinh Bhupendrasinh Solanki who was one of the officers who chased the car and the scooter was recorded at Ex. 28 by the learned Chief Judicial Magistrate, Ahmedabad Rural at Narol. On going through the evidence of these witnesses as also several documents which were produced before him, the learned Chief Judicial Magistrate reached the conclusion that no case was made out which, if unrebutted, would result in conviction of these respondents and, therefore, discharged them, while he held that case was made out against the third accused and he framed a charge against him. Being dissatisfied with the order of discharge passed by the learned Chief Judicial Magistrate, the original complainant has filed this revision application before this Court.
It is pertinent to note that the charge against the accused is that they had made preparation for transporting the silver. The charge is not that they transported or attempted to transport. This aspect has to be borne in mind while considering whether a prima facie case is made out against these respondents or not. I am mentioning this aspect at this stage as it seems from the discussion made by the learned Chief Judicial Magistrate that he has proceeded as if the charge was that the accused had attempted to transport the silver. He appears to have missed the important aspect of the prosecution case that the charge against the accused is that they made preparation to commit the offence of transporting silver to specified area.
3. Now, while considering whether charge should be framed or the accused should be discharged, the learned Judicial Magistrate was not required to appreciate evidence in the same way in which he would do while considering whether the accused should be convicted or acquitted. Section 245 of the Code of Criminal Procedure, 1973 provides that if, upon taking all the evidence referred to in section 244, the Magistrate considers, for reasons to be recorded, that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the Magistrate shall discharge him. If there is some evidence on record which, if accepted, would warrant a conviction of the accused, the accused cannot be discharged. The question whether particular evidence should be accepted or not arises only at the end of the trial and not at the stage of considering whether the accused should be discharged. Bearing in mind these provisions of section 245 which pertain to discharge, let us consider whether the learned Chief Judicial Magistrate was right in his conclusion that no case has been made out which, if unrebutted, would warrant conviction of the accused. It may be mentioned at this stage that the say of the accused is that of total denial. They do not explain as to how the silver was found from the car which was driven by one of the respondents, as alleged by the prosecution. They deny having any connection whatsoever with the car or the scooter in question. In short, the say of both the accused is that of total denial.
4. So far Dattatreys Anerao, the complainant, Ex. 4, is concerned, he has no personal knowledge about the incident and he has filed complaint on the material which was available with him. His evidence does not assume much importance so far as the actual incident is concerned. He, of course, recorded the statements of some persons and that way, his evidence assumes some importance, but I shall refer to the same a little later. The prosecution has examined Ajaypalsinh Solanki at Ex. 28. His evidence shows that after getting the information, he and other officers of his Department and the two panchas waited near the Sapna Talkies on the Sarkhej road and when the two vehicles proceeded ahead towards Sarkhej, they also chased the same in the jeep and after going beyond the railway crossing near Sarkhej, the two vehicles stopped and the person who was driving the scooter and the person who was the sole occupant of the car were found standing near the Ambassador car talking with each other. It is the positive statement of this Ajaypalsinh in his evidence recorded before the court that on interrogation the person who was driving the car gave his name as Mahesh Kantilal Soni, while the person who was driving the scooter gave his name as Narendra Kantilal Shah. His evidence further shows that on searching the car, silver was found from the same. This is the positive evidence of this Ajaypalsinh.
5. Dattatreya Anerao recorded the statements of the accused and some others. The statement of one Lasmanbhai recorded by the Assistant Collector cannot be taken into consideration because he is not examined as a witness. Dattatreya Anerao also recorded two statements of Mahesh Kantilal Soni on 6th February, 1983 one of which is at Ex. 7. He has stated therein that he knew Narendra for the last about ten years and that Narendra had a jeweller's shop dealing in gold and silver in Vrandavan Shopping Centre at Ahmedabad. He has also stated therein that he used to purchase gold, silver, etc. from him whenever he was in need of the same. He further stated therein that on that day, i.e. 6th February, 1983 he had a talk with Narendra on phone and they wanted to go to Bavla for bringing rice and, therefore, he was called at the shop of Narendra at about 2 to 2.30 P.M. He brought his scooter and thereafter he, i.e., Mahendra left for Bavla on scooter. He states therein that near railway crossing near Sarkhej, the customs officers apprehended them and they took them to the Customs Office along with the car bearing No. MBE 648. He stated therein that he had no concern with the silver which was found from the car and he had also no concern with the car. He was questioned as to what he had to say in connection with the case that Narendra Kantilal Shah was on the scooter piloting the car which he was driving and he replied that he was sitting on the scooter which was driven by Narendra and he had not driven in car. This is the statement of this Maheshkumar Kantilal Soni.
6. The discussion made above will go a show that the evidence of Ajaypalsinh and the statement. Ex. 7 of Maheshkumar Kantilal Soni go to show that Maheshkumar Kantilal Soni and Narendra Kantilal Shah knew each other very well and that they were found going on the scooter and car respectively on 6th February, 1983 towards Sarkhej and after going beyond railway crossing near Sarkhej, they stopped the vehicles and when they were found standing near the Ambassador car talking with each other, they were apprehended by the customs officers and silver was recovered from the Ambassador car. The evidence of Ajaypalsinh shows that Maheshkumar was driving the Ambassador car and even then Maheshkumar denies this fact when his statement was recorded by the customs officer. From the evidence which is produced by the complainant, prima facie it can be said that the respondent Narendrakumar was on the scooter piloting the car driven by Maheshkumar from which silver was found. It is also clear that these two respondents come out with a total denial and say that they had no concern at all with the car or with the silver found from that car. This is the material produced before the court and the question is whether on this material charge can be framed against these two respondents for the offence of preparation or they could be discharged.
7. Section 135A of the Customs Act which is material for our purpose reads as follows :-
'If a person makes preparation to export any goods in convravention of the provisions of this Act, and from the circumstances of the case it may be reasonably inferred that if not prevented by circumstances independent of his will, he is determined to carry out his intention to commit the offence, he shall be punishable with imprisonment for a term which may extend to three years, or with fine, or with both.'
8. It will appear on reading section 135A that for making out a case under section 135A of the Customs Act against any persons, the prosecution has to establish that that person has made preparation to export any goods in contravention of the provisions of the Customs Act and further that from the circumstances of the case it can be reasonably inferred that if not prevented by circumstances independent of his will, that person was determined to carry out his intention to commit the offence. It is, therefore, not enough for the prosecution to make out a case of mere preparation. It has further to make out a case that reasonable inference can be drawn from the circumstances that if not prevented by circumstances independent of his will, the said person was determined to carry out his intention to commit the offence. So far as the first aspect is concerned, we can say from the evidence of Ajaypalsinh read with the statement of Mahesh Kantilal Soni, Ex. 7 recorded by the Assistant Collector of Customs that a prima facie case is made out about preparation to commit an offence of exporting silver. The Ambassador car was proceeding towards Sarkhej. It stopped only aftyer it had crossed the railway crossing near Sarkhej. That road leads to Bavla and further, to Saurashtra and Kutch. The bifurcation to Gandhinagar is on the Ahmedabad side of Sarkhej Railway crossing. The respondents do not offer any explanation about the presence of silver in the car which was proceeding in that direction. In view of this, prima facie it can be said that these respondents were taking silver towards Saurashtra or Kutch sea coasts for exporting the same out of India.
9. The learned advocate Mr. B.C. Patel for the respondents-accused drew my attention to a decision of the Supreme Court reported in Malkiat Singh v. State of Punjab, AIR 1970 SC 713 in support of his submission that no case is made out even for preparation against these two respondents. Now, the Supreme Court was considering the case relating to an offence punishable under the Essential Commodities Act. Preparation to commit an offence is not punishable under the said Act but attempt to commit is made an offence. The Supreme Court was considering the difference between attempt and preparation. Mr. Patel also drew my attention to another decision of the Supreme Court reported in Nasu Sheikh v. State of Bihar, AIR 1972 SC 1610 wherein also the question was about attempt to commit an offence punishable under the Essential Commodities Act. In that case also the Supreme Court was concerned with the question whether the act of the accused was sufficient to make out a case of attempt or mere preparation. In both the cases, the Supreme Court has illustrated the difference between attempt and preparation. I fail to understand how these two decisions of the Supreme Court in any way support the centention raised by Mr. B.C. Patel because if we apply the test laid down in these two decisions of the Supreme Court relied upon by Mr. Patel, they, on the contrary, clearly show that these two respondents did make preparation for export, though it cannot be said that they reached the state of attempt to commit the offence of exporting silver. While considering the question, whether the act of appellants constituted an attempt or preparation, the Supreme Court observed in the case of Kalkiat Singh (supra) as follows :-
'The test for determining whether the act of the appellants constituted an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress that acts already done would be completely harmless. In the present case it is quite possible that the appellants may have been warned that they had no licence to carry the paddy and they may have changed their mind at any place between Semalkha Barrier and the Delhi-Punjab boundary and not have proceeded further in their journey. Section 8 of the Essential Commodities Act states that 'any person who attempts to contravene, or abets a contravention of, any order made under section 3 shall be deemed to have contravened that order.' But there is no provision in the Act which makes a preparation to commit an offence punishable. It follows therefore that the appellants should not have been convicted under section 7 of the Essential Commodities Act.'
10. In the case of Nasu Sheikh (supra) the Supreme Court has referred to its own decision in the case of Malkiat Singh (supra) at para 8 of the report and it appears that the Supreme Court came to the conclusion that on the material which was on record, the offence of attempt was not established. The learned advocate Mr. B.C. Patel, however, relied upon the decision of the Supreme Court in the case of Nasu Sheikh (supra) in support of his submission that the customs officers have given evasive replies on certain questions and therefore, their evidence is not acceptable. As stated by me a little earlier, the appreciation of the evidence of these officers vis-a-vis their omission to give replies to certain questions is a matter to be considered at the time of appreciating the evidence at the end of the trial and not at this stage. In view of this position, the decision of the Supreme Court is also not of much assistance at this stage.
11. In the case of Chaturi Yadav v. State of Bihar AIR 1979 SC 1412, the question was whether on the material which was on record, inference could be drawn that the accused had assembled for the purpose of committing dacoity or for making preparations to accomplish that object. The Supreme Court observed in that case that the possibility that the appellants might have collected for the purpose of murdering somebody or committing some other offence could not be safely eliminated. That was a decision on its own facts and I do not think that it is of any assistance in the present case in deciding the question whether prima facie, preparation is established or not. I may observe here even at the cost of repetition that as discussed a little earlier, prima facie a case for preparation is made out against both the respondents.
12. The learned advocate Mr. B.C. Patel also relied upon a decision of the Madhya Pradesh High Court reported in Rajaram Gupta v. Dharamchand and Others, 1983 Cri. LJ 612. In that case, it appears that the accused were discharged by the trial court but the order of discharge was set aside by the Court of Sessions and the matter was carried before the High Court and the High Court observed that the order of the lower court ought not to be lightly set aside unless it has entailed miscarriage of justice or where two views are possible merely because the revising court takes other view than the view taken by the lower court. It is also observed in that decision of the M.P. High Court that the order discharging the accused should not be interfered with unless it is perverse or on the face of record incorrect or foolish or perfunctory or glaringly unreasonable or made without recording reasons. In the present case, it seems as stated by me a little earlier, that the learned Magistrate has not properly appreciated the distinction between attempt and preparation and that is why he has proceeded to discharge the accused. He has not considered the question whether a prima facie case is made out as regards as regards the two different aspects of section 135A of the Customs Act which I have referred to a little earlier. The learned Chief Judicial Magistrate has taken the view that it was possible that the accused might change their mind and return back and, therefore, they could not be said to have committed any offence. Now, if preparation was not an offence, then certainly that view cannot be disturbed in revision because unless the person reaches the border between specified area and non-specified area, even the offence of attempt cannot be said to have been established. That would be the obvious result if preparation was not made an offence. This is also very clear from the decision of the Supreme Court which I have discussed a little earlier. But here is a case wherein preparation is made an offence and if we bear in mind that distinction, then certainly, prima facie, we can say that the respondents made preparation to export silver in contravention of the provisions of the Customs Act.
13. Now, as I stated a little earlier, it is not sufficient for the prosecution to make out a case for preparation. The prosecution has to further make out a case that the circumstances are such that a reasonable inference can be drawn that if not prevented by circumstances independent of his will, the person accused of the offence is determined to carry out his intention to commit the offence. Now, the words used are 'reasonably inferred'. This aspect has not been considered by the learned Chief Judicial Magistrate. When I drew the attention of the learned Standing Counsel Mr. S.R. Shah to this second aspect of section 135A, he drew my attention to section 138A of Customs Act. It will be proper to reproduce the said section which reads as follows :
'(1) In any prosecution for an offence under this Act which requires a culpable mental state on the part of accused, the court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the act charged as an offence in that prosecution.
Explanation. - In this section, 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.'
14. I do not think it proper to express a definite opinion on this aspect lest it might prejudice the case of the accused at the trial if charge is framed against them by the trial court. But prima facie, there appears to be much substance in the submission of Mr. Shah that section 138A of the Customs Act can be pressed into service while considering the second aspect of section 135A of the Act. Section 138A says that the court shall presume the existence of mental state when an offence under the Customs Act requires a culpable mental state on the part of the accused and it shall be for the accused to prove the fact that he had no such mental state. The explanation of sub-section (1) of section 138A of the Customs Act says that 'culpable mental state' includes intention, motive, a fact. The respondents-accused were found going in the direction of Saurashtra and Kutch. Silver was found from the Ambassador car which was driven by the respondent Maheshkumar. The car was piloted by the scooter driven by the respondent Narendra. Prima facie, therefore, we can say that both the respondents had some connection with this car which was following the scooter driven by Narendra. They do not give any explanation, much less reasonable explanation about the finding of silver from the dicky and inner portion of the car. They come out with a total denial, as stated by me earlier and say that they had no connection with the same. If the accused had come out with some reasonable explanation as to why they stopped after crossing the Sarkhej railway crossing, then a question might arise whether the second aspect of section 135A is established or not. But when it prima facie appears that they were taking the silver in the Ambassador car towards Saurashtra/Kutch side and when they do not give any explanation, prima facie it can be said they were determined to take the silver towards Saurashtra/Kutch. It is true that the Customs Officer Ajaypalsinh does not say that they had intercepted the car and the scooter and stopped them or that they raised some alarm and, therefore, these persons stopped these vehicles. The respondent Narendra Kantilal Shah in his statement recorded on 6th February, 1983 has stated, after referring to the circumstances in which they were proceeding in that direction, that Maheshbhai proceeded ahead in the Ambassador car and he followed the car on the scooter and after they went beyond the railway crossing of Sarkhej, two customs officers came on a scooter and the scooter was taken ahead of the car and, therefore, the car was stopped and the scooter was also stopped and the key of the Ambassador car was taken by the customs officers and they were stopped there, etc. This statement may not assume much importance because the customs officer Ajaypalsinh does not say so. His evidence shows that the vehicles, i.e., the car and the scooter were stopped without their intervention. Now, the learned advocate Mr. B.C. Patel urged that the fact that the scooter and the car were stopped without any intervention by anyone shows that it cannot be said that the respondents were determined to carry out their intention to commit the alleged offence. Now, why the two vehicle were stopped after going beyond the railway crossing near Sarkhej was best know to the two respondents and they could have thrown some light on this question. It is not improbable that on seeing that they were being chased by some persons, they thought stopping them because if they proceeded ahead speedily to avoid the persons who were chasing them, more suspicion may be raised against them and they could be apprehended after going to some distance. Anyway, it will be for the trial court to draw necessary inferences which can be reasonably drawn on overall appreciation of the material on record.
15. The discussion made above will go to show that the learned Chief Judicial Magistrate committed error in discharging the accused in the present case. The matter is, therefore, required to be sent back to the trial court for further inquiry and proceeding further in accordance with law in the light of the relevant provisions of the Customs Act, bearing in mind that the respondents are alleged to have committed an offence of preparation and not attempt.
16. Before parting with this case, I would like to observe that whatever observations are made by me in this judgment are only made with a view to show that the order of discharge cannot be justified. These observations need not be taken as an expression of final opinion of this court on any question required to be decided in this case by the trial court and the trial court should give its decision in the matter uninfluenced by any of the observations made in this judgment.
17. As a result of the aforesaid discussion, the revision petition is allowed, the order of discharge discharging the two respondents is hereby set aside and the matter is remanded to the trial court for further inquiry in accordance with law.
18. The learned Chief Judicial Magistrate has already expressed his opinion while discharging the respondents and, therefore, it is desirable that the matter goes back to some other Judicial Magistrate, First Class for further inquiry. Hence I direct that the matter should be heard by some Judicial Magistrate, First Class other than the learned Chief Judicial Magistrate who discharged the respondents.