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PETITIONER: SEVANTILAL KARSONDAS MODI

       Vs.

RESPONDENT: STATE OF MAHARASHTRA & ANOTHER

DATE OF JUDGMENT30/01/1979

BENCH: KOSHAL, A.D. BENCH: KOSHAL, A.D. FAZALALI, SYED MURTAZA

CITATION:  1979 AIR  705            1979 SCR  (2)1160  1979 SCC  (2)  58

ACT:      Evidence Act  1972 (1  of 1872)-S.  24-Accused  alleged that  he   was  assaulted  by  Customs  Officials-No  direct evidence  available-Surrounding  circumstances-If  could  be taken  into  account-Customs  Officials  whether  person  in authority-Confession made to customs officials if admissible in evidence.

HEADNOTE:      On receipt of information that smuggled gold was stored in it,  a large  number of  senior officials  of the Customs Department surrounded  the flat belonging to the brother-in- law of  the appellant and started searching it. According to the prosecution,  while the search was on, the appellant was found peeping  from outside  through the grille forming part of the  flat, and  started running  away, on seeing that the search was  being carried  on in  the flat. He was chased by the Customs  Staff and  caught.  Later  his  confession  was recorded. Along with the appellant several other persons had also been  tried for  the  same  offence.  The  trial  court convicted and sentenced the appellant of an offence under s. 120B IPC read with s. 135(1)(a) of the Customs Act.      On appeal the High Court found that the charge under s. 135(1)(a) and (b) of the Customs Act was not sustainable but holding that  the offence  under other  heads was proved, it upheld the appellant’s conviction and sentence.      It was  contended on  behalf of  the appellant that the confession was  the result  of an  assault  on  him  by  the Customs   Officials,   which   not   being   voluntary   was inadmissible in evidence under s. 24 of the Evidence Act.      Allowing the appeal. ^      HELD: 1.  (i) It  is unsafe  to regard  the appellant’s confession  as  voluntary  and  therefore  trustworthy.  The concerned Customs  Officials  were  "persons  in  authority" within the  meaning of  that expression used in s. 24 of the Evidence Act.  The confession may well have been obtained in a manner  which would  bring it within the ambit of s. 24 of the Evidence  Act. The  appellant has been able to prove the existence of  circumstances which  make it  highly  probable that his  confession is  hit by  the mandate  in section 24. [1169H-1170A, 1166C]

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    (ii) Although  there is  no direct  evidence that force was used  on the  appellant  to  extract  a  confession  the surrounding circumstances  prevalent at the relevant time in the Customs  House where the statement was recorded indicate that  all  was  not  well  with  the  manner  in  which  the interrogation of  various accused was being carried on. They indicate that the Customs Officials did not stick to ethical standards in  the performance  of their duties and exhibited much  zeal   in  bringing  the  captives  to  book  and  had transgressed the limit set by law. [1166E, 1169B]      (iii) One of the accused in this case was found to have seven injuries on his person. The stand of that accused that he was  coerced into  making a  confession, received support from the testimony of the doctor who examined 1161 him so  that the  probability appears to be that the accused received his  injuries on the hands of the Customs staff. In the absence  of an  explanation of the prosecution as to the situation in  which he  was  beaten,  it  is  reasonable  to presume that the stand taken by him was correct and that the injuries were  inflicted as a measure of coercion adopted to secure  his  confession.  Taking  these  circumstances  into consideration,  it   is  unsafe  to  regard  the  appellants confession too as voluntary.[1166F, 1168C, 1169G]      Besides, the  plea that he had been coerced into making the confession was taken at the earliest opportunity i.e. on the day following his release from custody on bail. [1169D]      2. Being a close relation of the owner of the flat, the appellant was  perhaps sharing  the flat with him and so had duplicate set  of keys;  his brother-in-law might have given the Bandi  found on  the appellant  not for  the purpose  of carrying the  gold but  just for use as an ordinary raiment. It is  also possible that the appellant became nervous, that he thought  that he  would be  implicated in  the crime  and therefore, might  have started  running away  on seeing  the Customs Officers  in the  house. Therefore, these factors on which the  High Court  relied for  sustaining his conviction cannot be  regarded as  incriminating circumstances. [1165F- 1166A]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 196 of 1973.      Appeal by  Special Leave  from the  Judgment and  Order dated 7-8-1973  of the  Bombay High Court in Criminal Appeal No. 222 of 1970.      S. B.  Bhasme, P. G. Gokhale and B. R. Agarwala for the Appellant.      M. K.  Ramamurthi, M.  N. Shroff,  Mrs. Hemanlaika Wahi for the Respondent No. 1.      R. N. Sachthey for Respondent No. 2.      The Judgment of the Court was delivered by      KOSHAL, J.-This  appeal by  special leave  is  directed against the  judgment dated  7th August  1973 of  the Bombay High Court  upholding the conviction of Sevantilal Karsondas Modi (the  sole appellant  before us)  for an  offence under section 120-B of the Indian Penal Code read with clauses (a) and (b) of sub-section (1) of section 135 of the Customs Act 1962, and  a sentence  of rigorous  imprisonment for  a year recorded by the Chief Presidency Magistrate, Bombay.      2. The  appellant was one of 30 accused persons against whom the  police initiated  proceedings in  the court of the trial Magistrate.  Out of  them, accused  Nos. 28 to 30 were

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not  tried   as  they   had  absconded   and  could  not  be apprehended. The  case against  accused Nos.  18 and  19 was allowed to  be withdrawn  by the  learned Magistrate  on  an application made by the Public Prosecutor under section 1162 494 of  the Code of Criminal Procedure. Accused Nos. 14, 24, 25, 26  and 27 were discharged by the learned Magistrate for want of evidence against them. Charges were framed by him on 10 counts  against the  other 20  accused who  were tried in consequence. At  the trial,  266 witnesses  were examined in support of  the prosecution  case and  6 in defence. Accused Nos. 9, 10, 11, 15, 16, 17 and 20 were acquitted as a result of the  trial, while  13 of those charged were convicted and sentenced to  various terms of imprisonment. All the 13 last mentioned went  up in appeal to the High Court who acquitted accused Nos.  1, 21, 22 and 23. Accused No. 13 happens to be the appellant  before us.  He was convicted and sentenced by the learned  Magistrate as  aforesaid and also on a separate charge for  an offence,  under clauses  (a) and  (b) of sub- section (1)  of section 135 of the Customs Act and sentenced to rigorous  imprisonment for six months in consequence. His conviction on  that charge,  however, was  set aside  by the High Court,  against  whose  judgment,  as  already  stated, special leave to appeal was granted to him by this Court.      3. The prosecution case in so far as it is relevant for the purpose  of this  appeal may  be briefly  stated. V.  K. Asthana, (P.W.  228) who was then the Deputy Director in the Directorate of  Revenue Intelligence  in the  Department  of Customs  at   Bombay  and  is  hereinafter  referred  to  as ’Asthana’,  received   information  in  the  first  half  of September 1966 to the effect that flat No. 2 forming part of the building  known as  Sagar Mandir  and situated  in  that locality of  Bombay which is called ’Shivaji Park’ was being used for  storage of  smuggled gold and disbursement thereof to its  purchasers. After the flat had been kept under watch for a  few days  by some  officials  of  the  Department,  a decision was  taken by  Asthana to  raid the  premises.  The raiding party  which consisted  of senior  Customs officers, took positions  in the  vicinity  of  Sagar  Mandir  on  the morning of  14th September 1966. They included B.M. Sevalia, Preventive Officer,  Bombay Customs  (P.W. 7 and hereinafter referred to as ’Sevalia’), G. N. Alreja, Preventive Officer, Bombay  Customs   (P.W.  34  and  hereinafter  mentioned  as ’Alreja), P.  G. N. Ayengar, Appraiser in the Directorate of Revenue  Intelligence   (P.W.  144  and  hereinafter  called ’Ayengar’) and  D.G. Mugwe,  Principal Appraiser in the said Directorate  (P.W.   152  and  hereinafter  referred  to  as ’Mugwe’). Sevalia  was deputed  to watch  the  movements  of persons entering  the flat  and to  give  a  signal  on  the arrival of  the suspects. At about 8.50 A.M., accused No. 12 was seen  entering the  flat and  Sevlalia alerted the other members of  the raiding  party by  giving the agreed signal. Half an  hour later,  a car  stopped at  the entrance to the compound of the building and 1163 accused Nos.  5, 6  and 7  alighted therefrom. Accused No. 5 went towards  the  concerned  flat  but  got  suspicious  on noticing the  presence of  strangers near  the entrance.  He turned back and so did his two companions. All three of them took to  their heels but were caught by the raiding party on a direction  by Mugwe.  Accused No.  12 was found inside the flat. The  person of each one of accused Nos. 5, 6 and 7 was searched and  yielded 200  slabs of  gold weighing  10 tolas each. All the slabs bore foreign markings and were contained in jackets  having long  pockets and  worn by  each  of  the

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captives. Bunches  of keys  exhibits K-4,  K-5 and K-6 and a diary containing  accounts exhibit  ’O’ were  found lying in the passage  forming part of the flat. Bandi exhibit J-2 was secured from  a room  of the flat. A search of the person of accused No.  12 yielded  keys exhibit  K-2, which fitted the locks used in the flat, and sheets of accounts exhibit ’S’.      While the search was going on, accused No. 13 was found peeping from  outside through  a grille  forming part of the flat but  started running  away on seeing what was happening inside. He  was chased and captured and two keys were seized from his  person. One  of them  was found to fit the lock on the outer  door of  the flat  and the other to fit the latch therein. He  was also found wearing a bandi similar to bandi exhibit J-2.  At his instance four slabs of gold and 10 gold bangles,  each   weighing  10  tolas,  were  recovered  from underneath the mattress lying on a bed in the flat.      Accused Nos.  5 to  7 and  13 were  interrogated by the Customs officials.  The statement  of accused No. 13 exhibit Z-383 was recorded by Ayengar on the 15th of September 1966. In that  statement, the appellant gave an exhaustive account of the  circumstances in which he happened to come to Bombay and made  his services  available to  the principal  accused named J. K. Shah. The long and short of the statement may be summarised thus:           One day J. K. Shah called accused No. 13, gave him      some cloth and sent him in the company of one Goverdhan      Das to have the cloth tailored into bandis of a special      type having two wide and long pockets in the front. The      cloth supplied  was thick  and strong. A few days after      the bandis  were ready, accused No. 13 was taken to the      flat  in   question  by  his  sister’s  husband,  named      Natwarlal (accused  No.  12)  or  by  accused  No.  15.      Thereafter accused  No. 13  visited  the  flat  several      times when  he would  receive  bandis  containing  gold      brought from  outside and  store them  in the  flat  or      would remove such bandis from the flat to other 1164      places in  town. J.  K. Shah  had given him keys of the      flat. Whatever  gold was  removed by him from the flat,      was either  deposited by  him in  a room  on the second      floor  of   a  building  situated  in  Modi  Street  or      delivered to  J. K.  Shah in the latter’s office on the      3rd floor  of building  No. 111 situated in Tambakanta.      The room  in Modi  Street had  a telephone  the  number      whereof was  262283 and a key of this room was supplied      to him  by J. K. Shah. He used to receive orders either      from J.  K. Shah  or from  accused No.  15 to go to the      flat in  Sagar Mandir  and receive  the gold  there. He      received gold  in this  way on  the 12th  and  13th  of      September 1966. On the day of his capture he was in the      room in  Modi Street  when he received a telephone call      from J.  K. Shah  at 11  or 11.15 A.M. requiring him to      visit the  flat in  Sagar Mandir  and find  out if  any      trouble was brewing and that if that was so, J. K. Shah      was to  be informed  on the  telephone. Accused  No. 13      rushed to  Sagar Mandir in a taxi and tried to find out      from outside  if there  was anything  wrong.  For  that      purpose he looked through a broken ventilator. While he      was coming  towards the road on the beach nearby he was      detained and was taken inside the building.      While the  above statement  was being recorded, accused Nos. 4,  5, 6,  7 and 8 were identified by accused No. 13 as the persons  from whom  he used  to receive  gold  at  Sagar Mandir.      4. The  evidence relied upon by the prosecution against

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accused No. 13 may be split up under the following heads:           (a)  He was seen visiting the flat in Sagar Mandir                on the  8th, 9th  and 13th  September 1966 by                the Customs  officials who  were watching the                premises under the orders of Mugwe.           (b)  He was  peeping into  flat No.  13 between 11                A.M. and  12 noon  on the  14th of  September                1966.           (c)  When he  found that the flat was under search                by  officers   belonging   to   the   Customs                Department, he tried to run away.           (d)  He was  found in  possession of  keys fitting                the locks of the flat.           (e)  He was  wearing  a  bandi  similar  to  bandi                exhibit J-2  which is a special type of bandi                suitable for carrying gold slabs secretly. 1165           (f)  4 slabs  of gold  and 10  gold  bangles  were                recovered from underneath the mattress at his                instance.           (g)  The confession  made by  him and contained in                statement exhibit Z-383.      The learned  trial Magistrate found all the above heads to have  been established  and that  is why he convicted and sentenced accused  No. 13 on two counts. The High Court took a different view in relation to heads (a) and (f). It was of the opinion that the identification of accused No. 13 by the Customs officials on the 8th, 9th and 13th of September 1966 could not  safely be  relied upon  as they  had seen  people coming into  and going  out the  Sagar Mandir  only  from  a distance and  for very  short periods  of time so that their view  of  such  people  could  possibly  be  mere  "fleeting glances". It  further held the alleged recovery of four gold slabs and  10 gold  bangles to be unreliable as the marginal witness to  the recovery  memo who  was produced in court by the prosecution  did not  support it  and stated that he had not seen  accused No.  13 pointing  out the  slabs  and  the bangles. The  High Court concluded therefore that the charge under clauses  (a) and (b) of sub-section (1) of section 135 of the Customs Act was not sustainable. However it found the other heads  of evidence  proved and  on the  basis  thereof upheld the conviction and sentence in relation to the charge of conspiracy  to  commit  the  other  offences  just  above described.      5. After  hearing learned  counsel for  the parties  at length we  find ourselves  unable  to  uphold  the  impugned judgment in  so far  as accused  No. 13  is  concerned.  The circumstances that  he was found peeping into the flat, that he tried  to  run  away  on  seeing  the  Customs  officials searching  the  premises,  that  he  was  in  possession  of duplicate keys  of the  flat and that he was found wearing a bandi similar to bandi exhibit J-2 are not incompatible with his innocence. He was a close relation of accused No. 12 who has been found to the person really incharge of the flat and it would  thus be  natural for him (accused No. 13) to share the flat with the permission of accused No. 12. In so living with his  brother-in-law he  may have been given to wear the bandi found  on his  person not  for the purpose of carrying gold but  just for use as ordinary raiment. Again, in a city like  Bombay  it  is  not  unusual  for  persons  sharing  a particular accommodation  to be  provided with separate sets of keys for each in order to facilitate ingress or egress at will. Further,  an innocent  man finding  his premises being watched by  persons in  authority may well feel funky at the prospect of a false implication on the basis of a mere

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1166 suspicion (which  may or may not be well-founded and may try to make  himself scarce.  Without  more,  the  circumstances covered by  heads (b),  (c), (d), and (e), therefore, cannot be  regarded   as  incriminating   circumstances.   So   the conviction really  rests on the confession attributed to the appellant. If  it is  found to  be voluntary and true it may receive some  support from  the four  heads of evidence just above described.  If, on  the  other  hand,  the  confession appears to  be either  untrue in  any material particular or having been caused by any inducement, threat or promise such as is  described in  section 24 of the Evidence Act, it must fall and  with it  fall the other heads of evidence, leaving no material  to support  the conviction.  As it  is, we find that the  appellant has  been able to prove the existence of circumstances  which   make  it  highly  probable  that  his confession is  hit  by  the  mandate  in  section  24  above mentioned. Our reasons for coming to this conclusion follow.      6. The  case set  up by accused No. 13 in so far as his confession is  concerned, mainly  consists of a plea that it was the  result of an assault on him by the Customs officers including Ayengar and Sevalia and that the latter had forced him into making an endorsement in his own hand-writing under the confessional  statement to the effect that statement was voluntary  and   had  been  explained  to  him  by  Sevalia. Naturally, the  story of the assault has been stoutly denied by  Ayengar   and  Sevalia;   but  then   the  circumstances prevailing at  the relevant  time in the Customs House where the statement  was recorded definitely indicate that all was not well  with the  manner in  which  the  interrogation  of various accused was being carried on. In this connection the outstanding feature  of  the  situation  is  the  fact  that accused No.  15 when examined by Dr. S. R. Joglekar (D.W.I.) on the 16th September 1966 at 6.15 P.M. was found to have on his person  seven injuries  which the  doctor has  described thus:           "(1)  Ecchymosis  below  right  eye,  outer  part,                1/2"x1/3". blackish colour.           (2)   Ecchymosis below left eye, middle, 1/4"X1/4"                blackish colour.           (3)   diffused contused  area, 21/2"X3",  on right                thigh, upper part.           (4)  Contused area  on right  buttock,  3"  x  2",                lower part, wheal (?) marks seen.           (5)  diffused contused  area on  left thigh,  back                and outer part, 5" X 2", wheal (?) marks seen                transverse. 1167           (6)   Transverse wheal  (?) marks  on back of left                knee.           (7) Contused area on back of left leg, 2" X 1".      According to  the doctor,  these injuries  appeared  to have been  caused  two  to  four  days  earlier.  Admittedly accused No.  15 was  apprehended by the Customs staff on the 14th September  1966. No  explanation whatsoever  is offered for his  injuries by the prosecution  but the stand taken by accused No.  15 himself  in this behalf may be stated in his own words           "At that  time, there  were six  Customs  Officers      around me.  In the  gallery, I  was again  shown the  4      keys. I  was again  asked about the said keys and I had      again given  the  same  reply.  The  said  officers  on      hearing this,  get enraged  and began to say that I was      stating falsehoods.  One of  the officers then asked me      to take  out my clothes. I had then worn one under wear

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    and a  pant and  one bush-coat  and a ganji. I was then      asked to  remove my pant as well as my underwear by the      said officer  and I did so accordingly against my will.      That officer  then ordered me to sit in the position of      "a chair".  I was  so asked to sit like a chair without      the support of a wall even to my back. The six officers      were then standing around me at that time. After making      me to  sit in  that chair position they began to ask me      about the  said keys.  I had again given the same reply      about the  said keys.  If I  moved a  little  from  the      position of  a chair  given to  me, I was kicked by all      the officers  immediately. I  was able  to sit  in that      position  for   4-5  minutes.   I  used  to  fall  down      thereafter. I used to be kicked therefor, made to stand      again and  asked to  resume the  same position. In this      way, I  had fallen  and had  been assaulted  again  and      again by  the said  officers for  about an  hour or so.      While I was so being questioned and made to sit in that      position again  and again, one of the officers had gone      out and  had returned  with a  ruler in  hand having  a      round shape. As I was made to sit in that position of a      chair, I  often used  to move  therefrom, the  officers      immediately used  to assault  me and  I used  to get up      thereby. Out of the Custom Officers the officer who had      the ruler in his hand used to assault me therewith, and      the other officers used to assault me with kicks. I had      been assaulted  with that  ruler on my left buttock, on      my right buttock, on the back portion of the calf of my      left, leg,  on my  right thigh,  on the  backside of my      both legs etc. 1168      I had  received injuries  at all these places stated by      me above and as a result of this assault on me, I could      not even  stand up. Throughout the assault; I was being      questioned again  and again  about the said keys by all      the said  officers and at every time I was stating that      I did not know anything more about the same. Thereafter      I had  fallen down  on the  ground with my face towards      the ground. All the said six officers then went away."      This stand  may  not  be  devoid  of  exaggeration  and embellishment  but   it  receives  great  support  from  the testimony of  Dr. Joglekar  (D.W.I.) so that the probability appears to  be that  accused No. 15 received his injuries at the  hands   of  the   Customs  staff  and  there  being  no explanation on  the part  of prosecution as to the situation in which he was beaten, it is reasonable to presume that the stand taken  by him  is correct  and that  the injuries were inflicted on  him as a measure of coercion adopted to secure his confession.      In coming  to a contrary conclusion, the High Court was mainly influenced  by the  fact that although accused No. 15 had  filed  a  complaint  in  court  against  the  concerned officers of  the Department of Customs, he did not prosecute it but had it dismissed for default. The High Court observed in this connection:           "The only  explanation for  this unusual  attitude      offered by  him to  the Court  is that he was afraid of      vindicative attitude  from the  officers. We  have  not      been able  to conceive  how officers could have adopted      any vindicative  attitude, when  accused No. 15 was not      concerned with any offence. Be that as it may, the fact      remains that  the complaint  was not prosecuted and the      evidence was  recorded behind the back of the officers.      It is not possible to hold on the present material that      assaulting by  the officers  was for  the  purposes  of

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    extorting some  confession and  such assault  alone was      the cause  of the  injuries received  by  him.  Beyond,      therefore, creating  a fog  of suspicion,  the injuries      proved to  have been  caused to  accused No. 15, cannot      indicate  that   all  the  accused  were  subjected  to      torture, assault  and pressure for giving statements to      the liking  of officers  or compelling them to sign the      prepared statements."      We do not appreciate this approach to the determination of the voluntary nature of the confession of accused No. 15. As we  have already  pointed out,  the time of infliction of injuries coincided  with the day on which accused No. 15 was apprehended  and   his  confession  was  recorded.  In  this situation it was the imperative duty of the 1169 prosecution to  explain the circumstances in which it became necessary for  force to  be used by the Customs staff on the person of  accused No.  15 and  in the  absence of  any such explanation there  is no  reason why  his plea should not be taken at its face value.      7. We  are of  course not  directly concerned  with the voluntary nature of the confession of accused No. 15 in this appeal but the circumstances discussed in the last paragraph indicate that  the Custom  of officials  did  not  stick  to ethical standards in the performance of their duties and, on the other  hand, exhibited  such  a  zeal  in  bringing  the captives to  book as  transgressed the limits set thereon by law. We have already alluded to the fact that the High Court itself did not regard the recovery of four gold slabs and 10 gold bangles  alleged to  have been  made at the instance of accused No.  13 to  be trustworthy.  Besides,  the  plea  of accused  No.   13  that  he  was  coerced  into  making  the confession was  taken at  the earliest opportunity, i.e., on the 20th of September 1966 which was the day next to that of his release  from custody on bail. That plea is contained in letter exhibit  29 addressed  by him  on that  date  to  the Additional Collector of Customs, Bombay, which contained the following averments:-           "From the  14th instant  at 12  noon till  about 3      p.m. I  was locked  up along  in  one  room  with  some      Customs  Officers  who  continuously  interrogated  me,      threatened and physically assaulted me to make and sign      a statement  prepared by  them after ascertaining a few      personal questions  from me pertaining to my family and      myself. I  was not  allowed to  sleep during the entire      night of  the 14th/15th  and was not allowed to see any      person. The  statement was  written out by the officers      themselves in English language and it was not explained      to me and my signature was obtained which I have signed      in Gujarathi.  As a result of this threat, coercion and      complete exhaustion,  I had  no alternative but to sign      the statement after which only I was allowed to rest."      Taking note of these circumstances we would consider it extremely unsafe  to regard  the  confession  exhibit  Z-383 signed  by   the  appellant  as  having  been  made  by  him voluntarily and therefore trustworthy. The appellant, in our opinion, has shown the existence of circumstances which make it appear  to the  Court that  the confession  may well have been obtained  in a  manner which  would bring it within the ambit 1170 of section  24 of the Evidence Act, it being undisputed that the concerned  officers of  the Department  of Customs  were "persons in authority" within the meaning of that expression as used in the section.

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    8. In  the result  the appeal succeeds and is accepted. The judgment  of the  High Court is reversed, the conviction recorded against and the sentence imposed upon the appellant by the learned trial Magistrate and upheld by the High Court are set  aside and  he is  acquitted of  the charge  in  its entirety. N.V.K.                                       Appeal allowed. 1171