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PETITIONER: STATE OF GUJARAT

       Vs.

RESPONDENT: MOHANLAL JITAMALJIPORWAL & ANR.

DATE OF JUDGMENT26/03/1987

BENCH: THAKKAR, M.P. (J) BENCH: THAKKAR, M.P. (J) NATRAJAN, S. (J)

CITATION:  1987 AIR 1321            1987 SCR  (2) 677  1987 SCC  (2) 364        JT 1987 (1)   783  1987 SCALE  (1)598  CITATOR INFO :  RF         1992 SC 604  (49)

ACT:     Customs  Act,  1962: s. 123 and s. 135(1) read  with  s. III-Presumption that goods seized were smuggled goods   When to be raised--’Reasonable belief’--Connotation of.    Code  of Criminal Procedure, 1973:s.391--Additional  evi- dence  to prove a document--Admissibility of--Lapse  of  six years--Whether material. Practice & Procedure     Criminal Trial--Economic offences--Cause of the communi- ty-Courts to give equal treatment.

HEADNOTE:     The  respondent accused, a rail passenger, was found  by the Customs Officer wearing a waistchain weighing 820  gms., made  of pure gold and coated with mercury so as to give  an appearance  of being made of silver. The goldsmith  who  was summoned  to the railway station to test the article on  the spot  certified that it was made of pure gold.  The  article was  seized and he was charged for offences under s.  85  of the Gold (Control) Act, 1968 and s. 135(1) read with s.  III of the Customs Act, 1962. The trial court held that what was seized was an ’ornament’ and not ’primary gold’ and  acquit- ted the accused respondent of the charge under s. 85 of  the Gold  (Control) Act. Disregarding the evidence of the  gold- smith it took the view that the presumption under s. 123  of the Customs Act could not be raised as the Customs  official who  had made the seizure could not have entertained a  rea- sonable  belief  that the article in question  was  made  of smuggled gold. It also found fault in regard to the proof of report  of the Mint Master that the article in question  was made of pure gold of the specified fineness.     The High Court confirmed the acquittal and rejected  the request  made  by the prosecution  for  adducing  additional evidence  under s. 391 of the Code of Criminal Procedure  in order  to remove the alleged formal defect in the  proof  of the Mint Master. 678 Allowing the appeal by the State, the Court,     HELD:  1.1  The view taken by the High  Court  that  the

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presumption under s. 123 of the Customs Act that the  seized article was smuggled gold could not be raised was altogether unreasonable and cannot be sustained. [681E-F]     1.2 Whether or not the official concerned had seized the article  in  the  "reasonable belief’ that  the  goods  were smuggled  goods was not a question on which the Court  could sit in appeal. If prima facie there were grounds to  justify the  belief the Courts have to accept the  officer’s  belief regardless of the fact whether the Court of its own might or might  not have entertained the same belief. Section 123  of the  Customs Act does not admit of any  other  construction. [682A-C] Pukhran v. D.R. Kholi, [1962] 3 Supp. S.C.R. 866, applied.     1.3. In the instant case, the conduct of respondent No.1 in coating the article of pure gold with mercury to make  it appear  as  if it was of silver was itself a  conduct  which could have provided the basis for entertaining a  reasonable belief that the article was a smuggled article. This was  an extremely unusual circumstance which would have aroused  the suspicion of anyone. When the goldsmith was summoned at  the railway  station  to test the article on the  spot,  and  he expressed  the opinion that it was made of pure gold,  there was  no scope for taking any other view. The  acceptance  of this evidence would, in view of the provisions of s. 123  of the Customs Act, result in the burden of proof being shifted on the person from whom the article was seized to  establish that  it was not smuggled gold, which would justify  raising the  presumption  that the article in question was  made  of smuggled gold. [683C; 681E]     lsardas Daulat Ram & Ors. v. The Union of India &  Ors., [1962] Suppl. 1 S.C.R. 358, referred to.     2. The High Court was altogether unjustified in  reject- ing  the application of the prosecution invoking the  powers of the Court under s. 391 of the Code of Criminal  Procedure for reception of additional evidence. The prayer was reject- ed by the High Court on the ground that it did not  consider it  ’expedient  in the interests of justice to  open  a  new vista of evidence’ in view of the fact that the offence  had taken place six years back. The mere fact that six years had elapsed,  for which time lag the prosecution was in  no  way responsible was no good ground for refusing to act in  order to promote the ends of justice in an age when 679 delays in the Court have become very common. The opinion  of the Mint Master, which had admittedly been placed on record, though  had not been formally proved,  completely  supported the case of the prosecution that the gold was of the  speci- fied  purity. To deny the opportunity to remove  the  formal defect  was  to  abort a case against  an  alleged  economic offender.  The matter remitted to the High Court. An  appro- priate  direction shall be issued for recording of the  evi- dence to prove the report of the Mint Master. [683F-H; 684A; E-F]     Ends of justice are not satisfied only when the  accused in  a  criminal  case is  acquitted.  The  Community  acting through the State and the Public Prosecutor is also entitled to justice. The cause of the Community deserves equal treat- ment  at  the  hands of the court in the  discharge  of  its judicial functions. The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. [684A-B]

JUDGMENT:

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   CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.  74 of 1978.     From  the  Judgment  and Order dated  3.11.1976  of  the Gujarat High Court in Criminal Appeal No. 95 of 1975. Girish Chandra and M .N. Shroff for the Appellant. Dalveer Bhandari and S.K. Jain for the Respondents. The Judgment of the Court was delivered by     THAKKAR, J. A passenger travelling by a train, (respond- ent  no.  1  herein) who had adorned his  waistline  with  a waistchain  (kandora) weighing 820 grammes, which  according to  the  prosecution, was made of pure gold and  was  coated with  mercury so as to give an appearance of being  made  of silver  was  acquitted  by the trial court  relying  on  the evidence  of  a licensed gold dealer as a  defence  witness, who, as per the narration in para. 17 of the judgment of the trial court, stated that:-               "  .......  such chains are put on as  ’kando-               ra’ on the waist of ladies and gents in Rajas-               than.  He  had  sold such  kandoras  and  seen               people  putting on such kandoras in  Rajasthan               State on their waist. Such chains or  kandoras               can  be prepared out of pure gold as  well  as               mixed gold. In old times               680               such kandoras used to be prepared out of  pure               gold. In these days such type of kandoras  are               sold out to us by people. The witness  further               states  that the design of muddamal chain  was               much  in  vogue  in Rajasthan  as  because  of               unsoldered hooks it would fetch full value  on               sale. By pure gold he meant gold of more  than               99.60 purity or 24 carats purity. According to               him  about 25 years back sharaps of  Rajasthan               were  not allowed to sell gold of less  purity               than 99.60 under Mewari State Law  .......  ". The  Learned  Trial magistrate persuaded  himself  that  the aforesaid  evidence established that it was an ornament  and not  primary  gold.  The learned Magistrate  acted  with  an impropriety  in making himself a witness for the defence  by observing:-        "  .....  I have seen the seized gold chain myself in court.  It cannot be called in unfinished state or form.  It is an ornament  .....  " The trial court in these premises held that what was  seized was  an ’ornament’ and not ’primary gold’. The  trial  court accordingly  acquitted the respondent-accused of the  charge for an offence under Section 85 of the Gold (Control) Act of 1968.  It is a matter of great concern that the  High  Court confirmed this finding by overlooking a significant  circum- stance  which stood out a mile. If the chain was  bona  fide worn  as  an ornament, it would not have  been  plated  with silver.  The desire to show off being the basic  purpose  of wearing  an ornament, one may subject an ornament of  silver to  gold plating. But one would not subject an  ornament  of pure  gold to silver plating. It was obvious that it  was  a deceitful  device to evade the law. Be that as it may,  this aspect  need not be probed further in view of the fact  that the  appeal  preferred  by the State against  the  order  of acquittal in so far as it concerns the offence under Section 85 of the Gold (Control) Act, 1968 was not pressed.  Suffice it to say that the approach made by the trial court  evinces a permissive and over-indulgent attitude towards the  viola- tors  of  laws enacted to prevent and  punish  economic  of- fences.     The occasion for approaching this Court has been provid-

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ed  by  the view taken by the High Court in  regard  to  the charge for an offence under Section 135(1) read with Section III of the Customs Act. The charge against respondent no.  1 was that he was concerned with acquisition, carriage,  keep- ing  or  concealing with the goods which were liable  to  be confiscated under Section III having regard to the fact that there  was  a prohibition against the import into  India  of goods which 681 were found in his possession namely pure gold of the  speci- fied  fineness  i.e. 99.60 or 24 carat. It needs to  be  re- called that Respondent No. 1 had adorned himself with a gold chain  which was coated with mercury in order to give it  an appearance  that  it  was made of silver.  The  trial  court disregarded the evidence of P.W.3, the gold-smith who certi- fied  that  the  chain was made of pure gold  and  that  the presumption  under Section 123(1) of the Customs  Act  could not  be raised as in the opinion of the learned  Magistrate, P.W.  1 Mahida, Superintendent of Customs who had  made  the seizure  could  not have "entertained a  reasonable  belief" that the article in question was made of smuggled gold.  The trial  court  also  found fault in regard to  the  proof  of report  of the Mint Master that the article in question  was made of pure gold of the specified fineness.     The High Court confirmed the acquittal on all the  three grounds.  The request made by the learned  Assistant  Public Prosecutor  for adducing additional evidence  under  Section 391 of the Code of Criminal Procedure in order to remove the alleged  formal defect in the proof of the Mint  Master  was rejected.  That  is why the matter has been  brought  before this Court by way of the present appeal.     P.W. 1, Superintendent of Customs Shri Mahida  testified that he had seized the article in question in the reasonable belief  that the same was an article made of smuggled  gold. The  acceptance of this evidence would result in the  burden of  proof being shifted on the person from whom the  article was  seized  to establish that it was not smuggled  gold  in view  of  the  statutory provision Section  123  of  Customs relating to burden of proof which would justify raising  the presumption  that the article in question was made of  smug- gled gold. Whether or not the 1.  "123.  Burden of proof in certain cases--(1)  Where  any goods  to which this section applies are seized  under  this Act  in the reasonable belief that they arc smuggled  goods, the burden of proving that they are not smuggled goods shall (a) in a case where such seizure is made from the possession of any person.-- (i)  on  the  person from whose possession  the  goods  were seized; and    (ii)  if  any person, other than the  person  from  whose possession  the  goods were seized, claims to be  the  owner thereof, also, on such other person;  (b) in any’ other case, on the person, if any who claims 10 be the owner of the goods seized, 2. This section shall apply to gold, diamonds, manufacturers of  gold or diamonds. watches and any other class  of  goods which  the  Central Government may by  notification  in  the Official Gazette specify." 682 official concerned had seized the article in the "reasonable belief" that the goods were smuggled goods is.not a question on which the Court can sit in appeal. The law to this effect has  been declared in no ambiguous terms in  Pukhran  v.D.R. Kholi, AIR 1962 S.C. 1559 = 1962 (3) Supp. S.C.R. 866.  This Court  has administered caution to the Courts not to sit  in

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appeal  in regard to this question and has observed that  if prima  facie  there are grounds to justify  the  belief  the Courts have to accept the officer’s belief regardless of the fact  whether the court of its own might or might  not  have entertained the same belief. The law declared by this  Court is binding to the High Court and it was not open to the High Court  to do exactly what it was cautioned against  by  this Court.  Section 123 of the Act does not admit of  any  other construction.  Whether  or  not the  officer  concerned  had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over-indulgent  eye which sees no evil anywhere  within  the range  of its eyesight. The circumstances have to be  viewed from the experienced eye of the officer who is well equipped to  interpret  the suspicious circumstances and  to  form  a reasonable belief in the light of the said circumstances. In the present case the concerned official had mentioned  three circumstances which made him entertain the reasonable belief that the article was a smuggled one viz:    (1)  On the basis of the prior information he  was  alert and was on the look out, watching the movements of  respond- ent no. 1.   (2) The chain which had adorned the waistline of  respond- ent  no. 1 was coated with mercury so as to give an  appear- ance of being made of silver. (3) As per the opinion of the goldsmith it was made of  pure gold. If  these circumstances did not make the  Superintendent  of Customs entertain a reasonable belief that it was a smuggled article,  he  was not fit to be an Officer  of  the  Customs Department. The circumstance that the chain was coated  with mercury  and  given  an appearance of having  been  made  of silver though it was made of pure gold of 99.60 purity or 24 carat,  was sufficient even for a layman, not to speak of  a Customs official, to entertain the belief that it was  smug- gled  gold. Would any one who was wearing an article  as  an ornament,  evidently  for  ostentious  purposes,  given  the article of pure gold the appearance of being made of silver? To  repeat  the observation made earlier one might  coat  an article of silver to give an appearance of having been  made of  gold  but no one would ordinarily take the  trouble  and incur the expenditure to 683 coat an article of gold in order to give it an appearance of having  been made of silver. This was an  extremely  unusual circumstance  which  would  have aroused  the  suspicion  of anyone.  When  the  goldsmith was summoned  at  the  Railway Station  to test the article on the spot, and  he  expressed the  opinion  that it was made of pure gold,  there  was  no scope for taking any other view. Even if a layman, let alone a  judge, were to ask himself the question as to whether  in these  circumstances he would have entertained a  reasonable belief  that the article was a smuggled article inasmuch  as gold  of this purity is manufactured only in  foreign  coun- tries  which  have sophisticated equipment and  the  further fact  that an attempt to camouflage the article was made  by the  person concerned his commonsense would not  have  given himself any other answer. The conduct of respondent no. 1 in coating the article of pure gold to make it appear as if  it was of silver was itself a conduct which could have provided the  basis for entertaining a reasonable belief it  being  a relevant  piece of evidence as per the law declared by  this Court in Isardas Daulat Ram & others v. The Union of India & others,  [1962] Suppl. 1 S.C.R. 358 = A.I.R. 1966 SC,  1867. The view taken by the High Court is altogether  unreasonable

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and accordingly it cannot be sustained.     The next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to prove letter Ex. 26 received from the Mint Master certifying that the article in question was  made  of gold of the purity of 99.60. The  request  was made  in order to invoke the powers of the Court under  Sec- tion  391  of the Code of Criminal  Procedure,  1973,  which inter  alia provides that in dealing with any  appeal  under Chapter  XXIX  the  appeal court, if  it  thinks  additional evidence  to be necessary, shall record its reasons and  may either take such evidence itself or ask it to be taken by  a Magistrate. The High Court rejected the prayer on the ground that  it did not consider it "expedient in the interests  of justice to open a new vista of evidence" in view of the fact that  the offence had taken place six years back.  The  mere fact  that  six years had elapsed, for  which  time-lag  the prosecution  was in no way responsible, was no  good  ground for  refusing  to act in order to promote the  interests  of justice  in  an age when delays in the Court have  become  a part  of life and the order of the day. Apart from the  fact that the alleged lacuna was a technical lacuna in the  sense that  while  the opinion of the Mint Master  had  admittedly been  placed on record it had not been formally  proved  the report completely supported the case of the prosecution that the gold was of the specified purity. To deny the opportuni- ty to remove the formal defect was to abort a case 684 against  an alleged economic offender. Ends of  justice  are not  satisfied only when the accused in a criminal  case  is acquitted.  The Community acting through the State  and  the Public Prosecutor is also entitled to justice. The cause  of the  Community deserves equal treatment at the hands of  the court in the discharge of its judicial functions. The Commu- nity or the State is not a person-non-grata whose cause  may be  treated with disdain. The entire Community is  aggrieved if the economic offenders who ruin the economy of the  State are  not brought to books. A murder may be committed in  the heat  of  moment upon passions being  aroused.  An  economic offence  is committed with cool calculation  and  deliberate design  with  an eye on personal profit  regardless  of  the consequence  to the Community. A disregard for the  interest of  the  Community  can be manifested only at  the  cost  of forfeiting  the  trust  and faith of the  Community  in  the system to administer justice in an even handed manner  with- out  fear  of criticism from the quarters which  view  white collar crimes with a permissive eye unmindful of the  damage done to the National Economy and National Interest. The High Court was therefore altogether unjustified in rejecting  the application made by the learned Assistant Public  Prosecutor invoking  the powers of the Court under Section 391  of  the Code  of Criminal Procedure. We are of the opinion that  the application  should have been granted in the facts and  cir- cumstances  of the case with the end in view to do full  and true justice. The application made by the learned  Assistant Public Prosecutor is therefore granted. The High Court  will issue  appropriate directions for the recording of the  evi- dence  to prove the report of the Mint Master under  Section 391 Cr. P.C. when the matter goes back to High Court and  is listed for directions. The appeal is therefore allowed.  The order  of acquittal is set aside. The matter is remitted  to the High Court for proceeding further in accordance with law in the light of the abovesaid directions. P.S.S.                                          Appeal   al- lowed.

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