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PETITIONER: ASSISTANT COLLECTOR OF CENTRAL EXCISE, CALICUT

       Vs.

RESPONDENT: V.P. SAYED MOHAMMED

DATE OF JUDGMENT12/01/1983

BENCH: VENKATARAMIAH, E.S. (J) BENCH: VENKATARAMIAH, E.S. (J) MISRA, R.B. (J)

CITATION:  1983 AIR  168            1983 SCR  (2) 225  1983 SCC  (1) 370        1983 SCALE  (1)20

ACT:      Evidence-Benefit of  doubt  to  accused-Doubt  must  be reasonable, real  and  substantial  arising  out  of  entire evidence.

HEADNOTE:      The respondent  was charged  under s.  135 (b)  of  the Customs Act, 1962 read with s. 85 (ii) of the Gold (Control) Act, 1968.  The case against him was supported inter alia by the oral  evidence of  the Inspector  who had seized 28 gold bars from  him at a railway station, the ticket collector on duty at  the time  of seizure  and  the  goldsmith  who  had certified the purity and weight of the gold bars seized. The goldsmith had deposed that he could by experience assess the purity  of   gold  by  rubbing  it  on  a  touch-stone.  The documentary  evidence  included  a  statement  made  by  the respondent before  the Customs Superintendent admitting that the gold bars had been seized from him and that the same had not been legally imported. That the respondent had made this statement of admission had been affirmed by the Inspector in his deposition.  In his  examination under  s. 342 Cr. P.C., when the  respondent was  asked what he had to say regarding the deposition of the Inspector, he stated:           It is true that gold was recovered from my box. It      was not  mine. It  was handed  over to me by the person      called Mammu  asking me  to give it in his house. I had      no knowledge that it was gold."      The respondent  was  convicted  and  sentenced  by  the District Magistrate.  After his  appeal against the same was rejected by  the  Sessions  Judge  the  respondent  filed  a revision petition which was allowed by the High Court on the ground that the prosecution had failed to establish that the metallic bars seized from the respondent were gold bars.      The High  Court rejected  the evidence of the goldsmith on the  ground that he did neither have the training nor the qualification in the art of testing gold and that he had not conducted either  the furnance  test or the specific gravity test to  determine  the  character  of  the  metallic  bars. According to  it, the  goldsmith had miserably failed in the witness box  to give  the impression that he was a competent person to  certify that what were seized from the respondent were gold  bars. The  High Court  was of  the view  that  no

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importance could  be given  to the respondent’s statement of admission before  the Customs Superintendent as the same had not been put to him under s, 342, 226 Cr. P.C.  and the  person who  recorded it had also not been examined. In so far as the answer given by the respondent to the question  put by  the court  under s.  342, Cr. P.C. the High Court  observed that  even assuming  that it would have some value, the prosecution could not seek to split the same into various  parts and  rely on  what it  considered to  be advantageous to establish its case.      Allowing the appeal against acquittal, ^      HELD: The  onus of  proving the  facts essential to the establishment of the charge against an accused lies upon the prosecution and  the evidence  must be  such as  to  exclude every reasonable  doubt about the guilt of the accused. If a reasonable doubt  arises in  the mind  of  the  court  after taking into  consideration the  entire  material  before  it regarding the  complicity of the accused the benefit of such doubt should  be given  to the  accused but  the  reasonable doubt should  be a  real and  substantial one  and  a  ’well founded actual  doubt arising  out of  the evidence existing after consideration of all the evidence’. [230 C-E]      Woodroffe &  Ameer Ali’s Law of Evidence, 13th ed. Vol. I, pp. 203-204, referred to.      In the  instant case  the doubt entertained by the High Court about  the nature  of  the  metallic  bars  cannot  be considered to  be a  reasonable doubt. It is well known that persons who  are goldsmiths  by profession  are able to find out whether a piece of metal is gold or not by the colour of the streak  produced by  rubbing it on a touch-stone used by them even  though their  assessment of its purity may not be exact. Further, the respondent did not dispute that gold had been recovered  from his  box. Reading  his  answer  to  the question put  under s.  342, Cr.  P.C. as  a whole, it means that he  knew that  when his  steel  trunk  was  opened  and searched there  was gold  in it but he had no knowledge that the packet  contained gold when it was handed over to him by Mammu. The High Court erred in holding that the statement of the respondent  that the  gold was seized from him could not be used  against him  on the  ground that it would result in the splitting  up of  the statement  which was  on the whole exculpatory. [230 H. 231 A-E]      In this case even without the aid of the statement made by the  respondent before  the Customs  Superintendent it is possible to  hold that  the metallic  bars seized  from  the respondent were  gold bars  in view  of the  evidence of the Inspector, the  ticket collector  and the  goldsmith and the statement of  the respondent  before the  Court. Further, in the circumstances  in which  the gold  bars had  been seized from the  respondent, the  burden of  proving that they were not smuggled  goods was  on respondent  under s.  123 of the Customs Act. [231 E-G]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 44 of 1976.      Appeal by  Special leave  from the  judgment and  order dated the  5th January,  1973 of  the Kerala  High Court  in Criminal Revision Petition No. 426 of 1972. 227      G.S. Narain and Miss A. Subhashini for the Appellant.

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    M.M. Abdul Khader and E.M.S. Anam for the Respondent.      The Judgment of the Court was delivered by      VENKATARAMIAH, J.  The Assistant  Collector of  Central Excise, Calicut  has filed  this appeal  after obtaining the special leave  of this  Court against the judgment and order dated January  5, 1973  of  the  High  Court  of  Kerala  in Criminal Revision Petition No. 426 of 1972.      Briefly stated, the facts of the case are these: In the early hours  of August  9, 1969 the respondent alighted from the Kerala  Express at  the Trichur  Railway Station  with a steel trunk  in his  hand. C.C. Mathan, Inspector of Central Excise Special,  Customs, Preventive,  Trichur (P.W.  1) who was on patrol duty at the Railway Station suspected that the respondent was  carrying contraband  goods and  on coming to know from  the  Ticket  Examiner  that  the  respondent  had arrived from Bombay he asked the respondent to hand over the steel trunk which he was carrying. When C.C. Mathan (P.W. 1) opened and  searched the steel trunk, he found in it 28 gold bars with  foreign markings.  The respondent was arrested by C.C. Mathan  (P.W. 1)  and when  questioned by  P.W. 1,  the respondent did  not produce  any authorisation entitling him to keep  the 28  gold bars  in question which were valued at Rs. 56,030/-.  A mahazar  (Exh. P.1) was prepared for having seized the  28 gold  bars. A  sum of  Rs. 1,380/-  which was found in  the steel  trunk was  also seized. Later on, it is stated, that  the 28  gold bars in question were confiscated in a  proceeding under  section 111(d)  of the  Costoms Act, 1962  read   with  section  23-A  of  the  Foreign  Exchange Regulation Act,  1947 before  the  Additional  Collector  of Customs, Cochin.  The steel trunk also was confiscated under section 119 of the Customs Act, 1962. A penalty of Rs. 500/- was imposed  on the  respondent under  section 112(b) of the Customs Act,  1962. The  amount of Rs. 1380/- which had been seized from  the respondent  was,  however,  ordered  to  be returned to  him.  Thereafter  the  Assistant  Collector  of Customs and  Central Excise,  Kozhikode after  obtaining the required sanction  under section  137(1) of  the Customs Act and section  97(1) of  the Gold (Control) Act, 1968 from the Additional Collector of Customs, Cochin and the Collector of Customs and  Central Excise,  Cochin  respectively  filed  a complaint before the District Magistrate (Judicial), 228 Tellicherry against  the respondent  for offences punishable under section  135(b) of  the Customs  Act read with section 85(ii) of  the Gold  (Control) Act,  1968. In support of the said  prosecution   four  witnesses  were  examined  by  the complainant. C.C.  Mathan, P.W.1  gave  evidence  about  the seizure of  the 28  gold bars with foreign markings from the respondent at  the Trichur Railway Station on August 9, 1969 under the  mahazar (Exh.  P.1). He  also produced  Exh.  P.2 which contained  the statement made by the respondent before the  Special   Customs  Preventive   Circle  Superintendent, Kozhikode in  which he  had admitted  that 28 gold bars with foreign markings  had been  seized from  him under a mahazar and that the said 28 gold bars had not been legally imported to India.  C.C. Mathan  (P.W. 1)  stated that he was present before the Special Customs Preventive Circle Superintendent, Kozhikode when  Exh. P.2  was recorded  and  that  the  said statement contained  the signatures of the respondent and of the Superintendent who had recorded it. K. Subramonian (P.W. 2) who  was working as a Ticket Collector at Trichur Railway Station stated that the 28 gold bars in question were seized on August  9,1969 at  the Trichur  Railway Station under the mahazar (Exh.  P.1) which  he had  signed.  V.M.  Velayudhan (P.W.3) who  was a  resident of  Trichur and  a goldsmith by

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profession stated that the 28 gold bars in question had been examined and  weighed by  him at the Trichur Railway Station at the  request of  C.C. Mathan  (P.W.1). He  further stated that he  tested the  purity of  the said  28  gold  bars  by rubbing them  on the  touch-stone and  found that  they were gold bars  of 24 carats quality. He gave a certificate (Exh. P.3) regarding  the purity  and the  weight of  the 28  gold bars. V.M.  Velayudhan (P.W.3) who was a certified goldsmith further stated that he could by experience assess the purity of gold  by rubbing it on a touch-stone. He, however, stated that he had no technical knowledge about gold and he did not know the  ’specific gravity’  method by  which the purity of gold could be determined. The Assistant Collector of Central Excise (P.W.4)  was examined to prove the sanctions given by the  competent   authorities  to   file  the  case.  In  his examination under  section 342 of Criminal Procedure Code in answer to  the following  question put  by the  Court: ’What have you  to say  about the  deposition of P.W.1 that you on 9th August,  1969 at  7 O’clock  in the moring alighted from train at Trichur Railway Station with a steel trunk and that P.W.1 on  searching the  box due  to suspicion, found out 28 gold bars  having foreign marks ?’ the respondent stated ’It is true that gold was 229 recovered from  my box.  It was not mine. It was handed over to me by the person called Mammu asking me to give it in his house. I  had no  knowledge that  it was  gold.’ The learned District  Magistrate   found  that   the   prosecution   had established that  the respondent  had committed  an  offence under section 135(b) of the Customs Act and an offence under section  85  (ii)  of  the  Gold  (Control)  Act,  1968  and convicted  him   of  those   offences.  The  respondent  was sentenced to  pay a  fine of Rs. 500/- for the offence under section 135(b)  of the Costoms Act and in default of payment of fine  to undergo  simple imprisonment  for six months. No separate sentence  was, however,  awarded  for  the  offence under  section   85(ii)  of  the  Gold  (Control)  Act.  The respondent preferred  an appeal  against the judgment of the learned  District  Magistrate  before  the  Sessions  Judge, Trichur and  that appeal was dismissed. The respondent filed a revision  petition before the High Court of Kerala against the decision  of the  learned Sessions  Judge:  The  learned Judge of  the High  Court who  heard the  revision  petition allowed it  and set  aside the  conviction of the respondent and the  sentence imposed  on him  on the  ground  that  the prosecution had not established that the metallic bars which were seized  from the  respondent under  Exh. P.1  were gold bars and,  therefore, the  conviction of the appellant could not be  sustained. The learned Judge found that the evidence of V.M. Velayudhan (P.W.3) who was examined in the case, the statement Exh. P.2 made by the respondent before the Special Customs Preventive  Circle Superintendent, Kozhikode and the answer given  by the  respondent under  section 342  of  the Criminal Procedure  Code taken  together were not sufficient to hold  that  the  gold  bars  had  been  seized  from  the respondent under  Exh.P.1. He  rejected the evidence of V.M. Velayudhan (P.W.3)  on the  ground  that  he  had  not  that raining or  the qualification in the art of testing gold and that he  had not  conducted either  the furnace  test or the specific gravity  test to  determine the  character  of  the metallic bars.  He was  of the  opinion that V.M. Velayudhan (P.W.3) had  miserably failed in the witness box to give the impression that  he was  a competent  person to certify that what were seized from the respondent were gold bars and that in the  absence of  any training  or  qualification  to  the

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credit of  V.M. Velayudhan  (P.W.3), it  would be  unsafe to rely on  his evidence and conclude that what was seized from the respondent  was gold.  So far  as Exh. P.2 was concerned the learned  Judge was  of the  opinion  that  as  the  said statement had  not been  specifically put  to the respondent under section  342 of the Criminal Procedure Code and as the person who had recorded it had not been 230 examined, no  importance could  be given to it. In so far as the answer  given by  the respondent  to the question put by the  Court  under  section  342  of  the  Code  of  Criminal Procedure which  is set  out above is concerned, the learned Judge observed  that even  assuming that  it would have some value the prosecution could not seek to split that statement into various  parts and  rely on  what it  considered to  be advantageous to  establish its case. Accordingly the learned Judge acquitted the accused.      The principal  point which  arises for consideration in this case  is whether  the prosecution  had established that smuggled gold  bars had  been seized  from the respondent on August 9,  1969 at  the Trichur  Railway Station  under Exh. P.1. It is true that the onus of proving the facts essential to the  establishment of  the charge against an accused lies upon the  prosecution and  the evidence  must be  such as to exclude every  reasonable  doubt  about  the  guilt  of  the accused. An accused cannot be convicted of an offence on the basis of  conjectures or  suspicions. If  a reasonable doubt arises  in   the  mind   of  the  Court  after  taking  into consideration the  entire material  before it  regarding the complicity of  the accused  the benefit of such doubt should be given to the accused but the reasonable doubt should be a real and  substantial one  and a  ’well founded actual doubt arising out  of the evidence existing after consideration of all the  evidence’. "Hence  a mere  whim  or  a  surmise  or suspicion furnishes an insufficient foundation upon which to raise  a  reasonable  doubt,  and  so  a  vague  conjecture, whimsical or  vague  doubt,  a  capricious  and  speculative doubt,  an   arbitrary,   imaginary,   fanciful,   uncertain chimerical, trivial,  indefinite or a mere possible doubt is not a  reasonable  doubt.  Neither  is  a  desire  for  more evidence of guilt, a capricious doubt or misgiving suggested by  an   ingenious  counsel   or  arising  from  a  merciful disposition or  kindly feeling  towards a  prisoner, or from sympathy for him or his family" (See Woodroffe & Ameer Ali’s Law of Evidence, 13th Edn. Vol.I pp. 203-204).      On a  reading of  the evidence  of C.C. Mathan (P.W.1), V.M. Velayudhan  (P.W.3) and the statement of the respondent under section  342 of  the Criminal  Procedure Code which is referred to  above, we  are of the view that the doubt which the learned  Judge of  the High  Court entertained about the nature of  the metallic  bars which  were  seized  from  the respondent under  Exh.  1  cannot  be  considered  to  be  a reasonable doubt.  It is  well known  that persons  who  are goldsmiths by profession are able to find out 231 whether a piece of metal is gold or not by the colour of the streak produced  by rubbing it on a touch-stone used by them even though their assessment of its purity may not be exact. It may  not be a scientific way of proving that the metallic bars were  gold bars.  In the  instant  case,  however,  the respondent did not dispute that gold had been recovered from his box  under Exh.  P.1. His plea was that it was true that gold was  recovered from  his box but that it did not belong to him;  that it  had been  handed over  by a  person called Mammu asking  him to give it in his house and that he had no

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knowledge that it was gold when the packet containing it was handed over  to him.  Reading the answer of the accused as a whole it  means that  he knew  that when his steel trunk was opened and  searched, there  was gold  in it  but he  had no knowledge that  the packet contained gold when it was handed over to  him by  Mammu asking  him to  hand it  over in  his house. The  answer consists  of two  parts and they refer to two distinct  matters. The  first part relates to seizure of gold from  him and  the latter  part  relates  to  what  had happened earlier when the packet was handed over to him. The case might  have been  different if he had said that no gold was recovered from his box. The High Court, therefore, erred in holding  that the  statement of  the respondent  that the gold was  seized from  him could  not be used against him on the ground  that it  would result in the splitting up of the statement which  was on  the whole exculpatory. Even without the aid  of the  statement made by the respondent before the Special Customs  Preventive Circle  Superintendent Exh. P.2, it is  possible to  hold in this case that the metallic bars seized from  the respondent under Exh. P.1 were gold bars in view of  the evidence  of P.Ws. 1, 2 and 3 and the statement of the  respondent before  the Court.  The High Court was in error in  coming to  the conclusion  that gold  had not been seized from  the respondent  by P.W.1 as per Exh. P.1 at the Trichur Railway  Station. These  gold bars  were  seized  by P.W.1 in  the reasonable  belief  that  they  were  smuggled goods. Under  section  123  of  the  Customs  Act,  in  such circumstances, the  burden of  proving that  they  were  not smuggled  goods  would  be  on  the  respondent  from  whose possession they  were  seized.  In  the  instant  case,  the respondent had  not discharged  the burden which lay on him. P.W.1 has  stated  that  the  said  gold  bars  had  foreign markings on  them and Exh. P.1, the mahazar corroborated his statement. The  respondent had  no authorisation to keep the said gold  with him.  It is  in evidence  that the said gold bars were found packed in paper and kept in the inside folds of a blanket underneath 232 some clothes in the trunk seized from the respondent. He had taken care  to secrete them. He had brought them from Bombay which  was   a  customs   area.  In  the  circumstances  his explanation  that  he  had  no  knowledge  that  he  was  in possession of  or carrying  smuggled  gold  bars  cannot  be believed, as rightly held by the learned Sessions Judge. The prosecution  has   clearly  established  the  guilt  of  the respondent. The  judgment of  the High  Court is, therefore, liable to  be set aside and it is accordingly set aside. The conviction of the respondent and the sentence imposed on him by the  learned District  Magistrate which  were affirmed on appeal by  the learned  Sessions  Judge  are  restored.  The appeal is accordingly allowed. H.L.C.                                       Appeal allowed. 233