{"id":5473,"date":"1979-12-04T00:00:00","date_gmt":"1979-12-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-vs-natwarlal-damodardas-soni-on-4-december-1979"},"modified":"2017-08-22T20:00:28","modified_gmt":"2017-08-22T14:30:28","slug":"state-of-maharashtra-vs-natwarlal-damodardas-soni-on-4-december-1979","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-vs-natwarlal-damodardas-soni-on-4-december-1979","title":{"rendered":"State Of Maharashtra vs Natwarlal Damodardas Soni on 4 December, 1979"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of Maharashtra vs Natwarlal Damodardas Soni on 4 December, 1979<\/div>\n
Equivalent citations: 1980 AIR 593, \t\t 1980 SCR (2) 340<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nSTATE OF MAHARASHTRA\n\n\tVs.\n\nRESPONDENT:\nNATWARLAL DAMODARDAS SONI\n\nDATE OF JUDGMENT04\/12\/1979\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nREDDY, O. CHINNAPPA (J)\n\nCITATION:\n 1980 AIR  593\t\t  1980 SCR  (2) 340\n CITATOR INFO :\n R\t    1985 SC 989\t (15)\n\n\nACT:\n     Code of  Civil Procedure-Anti  Corruption Bureau seized\nsmuggled gold from the house of the accused-police-If had no\njurisdiction to take cognizance.\n     Customs Act,  1962-5. 135-Scope of-Burden of proof that\ngold seized is no smuggled gold-on whom rests.\n     Words and\tphrases-\"Acquired  possession\" or \"Keeping\"-\nMeaning of.\n\n\n\nHEADNOTE:\n     The Anti-Corruption  Bureau of  the Police\t raided\t the\nhouse of  the respondent  and recovered\t gold biscuits\twith\nforeign markings stitched in a jacket lying in a steel trunk\nunderneath some\t clothes. At  the  time\t of  the  raid,\t the\nrespondent was not in the house but his wife and mother were\npresent. At about the same time the Customs Authorities also\nraided his house and took proceedings under the Customs Act,\n1962 in respect of the smuggled gold found in the house. The\nrespondent, who\t remained  absconding.\tsurrendered  to\t the\npolice a week thereafter.\n     At the trial the respondent contended that the gold was\nbrought into  his house\t by someone  and left  there ill his\nabsence and  that, therefore,  he rad no connection with the\ngold. The  trial court rejected the respondent's defence and\nconvicted him of the offences.\n     On appeal, the High Court held that the prosecution had\nfailed to  prove that  the gold\t found in  the house  of the\nrespondent was\tgold on\t which duty  had been  evaded or the\nimport of  which was prohibited and that for that reason the\nfurther question  whether the gold was smuggled gold did not\narise. It also interpreted rule 126H(2)(d) of the Defence of\nIndia Rules 1962 read with Rule 126 P(2) (iv) as confined to\nacquiring ownership  and  not  to  the\tmore,  acquiring  of\npossession and\theld that there was no acceptance of gold by\nthe accused  within the\t meaning of  the Rules\tbecause\t not\nbeing present in the house, he had no choice of accepting or\nrefusing the gold.\n     In appeal\tto this\t court it was contended on behalf of\nthe respondent\tthat (i)  the search  of his  house and\t the\nseizure of gold by the police was illegal; (ii) that section\n123 of\tthe Customs  Act  was  not  applicable\tbecause\t the\nseizure was  made not  by the Customs Authorities but by the\npolice under  the Code-\t of Criminal Procedure and therefore\nthe burden of proving the offence lay on the Police which it\ndid not discharge.\n     Rejecting the  respondent's contention and allowing the\nappeals,\n^\n     HELD: 1.  The police  had\tpowers\tunder  the  Code  of\nCriminal procedure  to search and seize the gold if they had\nreason\tto  believe  that  a  cognizable  offence  had\tbeen\ncommitted. Assuming that the search was illegal it would\n341\nnot affect  either the\tvalidity of  the seizure and further\ninvestigation by the  Customs Authorities or the validity of\nthe trial  which followed  on the complaint of the Assistant\nCollector of Customs. [344 H]\n     Radhakishan v. State of U.P.<\/a> [1963] Supp. 1 S.C.R. 408;\nShyam Lal  Sharma &  Anr v.  The State\tof  Madhya  Pradesh,\nA.I.R. 1972  S.C. 886;\tState of  Kerala  etc.\tv.  Alassery\nMohammed etc.  A.I.R. 1978  S.C. 933; W.T. Stone, Warden 74-\n1055 v.\t Lloyd Charles\tPowell\tand  Charles  L.  Wolff\t Jr.\nWarden, 74-1222\t v. David L. Rice (1976) USSC Bulletin, Vol.\n2, B 4840, referred to.\n     2.(a) The\tHigh Court  was in  error in  acquitting the\nappellant of  the charges  under  clauses  (a)\tand  (b)  of\nsection 135(1) of the Customs Act, 1962. [350 G]\n     (b) Even  if  the\tprosecution  could  not\t invoke\t the\nprovisions of  section 123  of the  Customs  Act  there\t was\nsufficient circumstantial  evidence to\testablish  that\t the\ngold was smuggled gold. [346 H]\n     (c) In  order to substantiate a charge under clause (b)\nof section 135(1), the prosecution has to prove (i) that the\naccused had  acquired possession or was in any way concerned\nin keeping  or concealing the gold bars (ii) that he knew or\nhad reason  to believe\tthat these  gold bars  were smuggled\ngoods and  thus liable\tto confiscation under section 111 of\nthe Customs Act. [347 G]\n     (d) Even  in cases\t where section 123(1) of the Customs\nAct is\tnot attracted  the  prosecution\t can  discharge\t its\nburden by  establishing circumstances  from which  a prudent\nman acting  prudently may  infer that in all probability the\ngoods in  question were\t smuggled goods\t and the accused had\nthe requisite guilty knowledge in respect thereof. [347 H]\n     Issardas Daulat  Ram and  Ors. v.\tThe Union  of  India<\/a>\n[1962] 1  Supp. S.C.R.\t358; Labhchand Dhanpat Singh Jain v.\nState of Maharashtra, A.I.R.<\/a> 1975 S.C. 182; Balumal Jamnadas\nBatra v.  State\t of  Maharashtra,  A.I.R.<\/a>  1975\t S.C.  2083,\nreferred to.\n     In the  instant case  while acquitting  the accused the\nHigh  Court   overlooked  several   tell-tale  circumstances\nappearing in  evidence which  establish that  the  gold\t was\nsmuggled gold  namely (a)  the gold  biscuits  bore  foreign\nmarkings which\tproclaimed their  foreign origin;  (b)\tthey\nwere of\t 24 carat purity which was not available in India at\nthe  material\ttime;  (c)  the\t gold  biscuits\t were  found\nconcealed stitched  in\tthe  folds  of\ta  jacket  specially\nprepared for  this purpose;  (d) the  gold biscuits  were of\nhuge value and (e) after the seizure of the gold the accused\nabsconded and continued to be a fugitive from justice till a\nweek thereafter.  All these circumstances show that the gold\nhad been smuggled into the country from a foreign country in\ncontravention of the Foreign Exchange Regulations Act, 1947.\n[347 C-E]\n     (e) The fact whether the gold had been imported with or\nwithout the  necessary permission  of the  Reserve  Bank  of\nIndia was within the knowledge of the respondent. It was for\nhim to\trebut the inference which arose under section 111 of\nthe Evidence Act. Once it is established that the respondent\nwas in\tconscious possession  or \"keeping\"  of the  gold  it\nfollows that he had the mens rea requisite under clauses (a)\nand (b) of section 135(1) of the Customs Act. [350 A-B]\n342\n     3.\t (a)   The  expression\t \"acquired  possession\"\t  or\n\"keeping\" in  section 135(1)  (b) is not to be restricted to\n\"possession\" or keeping acquired as an owner or purchaser of\nthe goods.  Such a  narrow  construction  would\t defeat\t the\nobject of  the provisions  and undermine  their efficacy  as\ninstruments  for  suppression  of  the\tmischief  which\t the\nlegislature had in view. [350 D]\n     (b) The  expression \"acquired  possession\" is  of\tvery\nwide amplitude\tand includes  acquisition or possession by a\nperson in  a capacity  other than as owner or purchaser. The\nclause which  is widely\t worded brings\twithin its fold even\ntemporary  control   or\t custody   of  a  carrier,  remover,\ndepositor, harbourer, keeper or dealer of any goods which he\nknows or  has reason  to believe  to be\t smuggled  goods  or\nprohibited goods (liable to confiscation under section 111).\nThe expression\t'keeping\" and  \"concealing\"  in\t the  second\nphrase of clause (b) also cover the present case.\n     4. The  view of the High Court that rule 126H read with\n126P of\t the Defence  of India\tRules has  no application to\nthis case  on the ground that the respondent did not acquire\npossession of  the gold\t biscuits for  purchase or otherwise\nwithin the  meaning of\tthe  Rules  would  emasculate\t the\nprovisions and\trender them  ineffective.  These  provisions\nhave to\t be construed  in a  manner which  will suppress the\nmischief and advance the object which the legislature had in\nview. [350 E]\n     Balkrishan Chhaganlal  v.\t State of  West Bengal\tAIR,\n1975 S.C. 2083, referred to.\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION :\t Criminal Appeal No.
\n231 of 1973.\n<\/p>\n
     Appeal by\tSpecial Leave  from the\t Judgment and  order
\ndated 13-10-1972  of the  Bombay High  Court in\t Crl. A. No.
\n73\/71.\n<\/p>\n
     O. P. Rana and M. N. Shroff for the Appellant.
\n     Shiv Pujan Singh (Amicus Curiae) for the Respondent.
\n     The Judgment of the Court was delivered by
\n     SARKARIA, J.-This\tappeal by  special leave is directed
\nagainst a judgment dated October 13, 1972, of the High Court
\nof Bombay.\n<\/p>\n
     Natwarlal, respondent  herein, was\t prosecuted  in\t the
\nCourt of  the .\t Presidency Magistrate\t2nd Court,  Mazgaon,
\nBombay, for  offences (1)  under Section  135(a)  read\twith
\nSection 135(i)\tof the\tCustoms Act, 1962, (2) under Section
\n135(b) read  with Section  135(i) of  the same\tAct, and (3)
\nunder Rule  126-H(2) (d) read with Rule 126 P(2) (iv) of the
\nDefence of  India Rules,  1962. The Magistrate convicted him
\nin respect of these offences and sentenced him to suffer six
\nmonths’ rigorous  imprisonment and  to pay  a  fine  of\t Rs.
\n1,000\/- on each count. The material facts are as follows .\n<\/p>\n
     On March 6, 1968, in consequence of certain information
\nreceived by the staff of the Anti-Corruption Bureau, Bombay,
\nresidential pre-\n<\/p>\n
343<\/span><\/p>\n
mises of  the accused-respondent at old Hanuman Lane, Bombay
\nwas searched  at about 1 p.m. The respondent himself was not
\npresent at  his house,\tbut his wife and mother were present
\nin the\tpremises at  the time  of the search. As a result of
\nthe search,  the Anti-Corruption  Bureau recovered  100 gold
\nbars, each  weighing 10\t tolas. These  gold bars had foreign
\nmarkings and were in the shape of gold biscuits of 24 carats
\npurity and were found stitched in a cotton jacket, which was
\nLying  in   a  steel  trunk  underneath\t some  clothes.\t The
\nprevailing market  value  of  the  recovered  gold  was\t Rs.
\n1,85,000.  As\tthe  search  was  being\t completed  and\t the
\nPanchanama prepared,  the Customs  Authorities, also  raided
\nthe premises.  The Anti-Corruption  Bureau,  however,  first
\ncompleted its  Panchanama and later on a separate Panchanama
\nwas prepared,  under which  the gold  so seized\t by the Anti
\nCorruption Bureau  was taken  possession of  by the  Customs
\nAuthorities. The  case of  the prosecution  further was that
\nthe respondent\tremained absconding after this recovery till
\nMarch 14, 1968, when he surrendered.\n<\/p>\n
     The Customs  Authorities, also,  took proceedings under
\nthe Customs  Act, 1962,\t and  during  the  course  of  those
\nproceedings,  recorded\t the  statements   of  the   accused
\nrespondent, his wife, and mother.\n<\/p>\n
     At the  trial, the accused respondent denied the charge
\nand claimed  lo be  tried. He,\thowever, did not dispute the
\nfact that  the gold in question was found from his premises.
\nSubstantially, his  defence was\t that this  gold was brought
\ninto his  premises by one Jayantilal Salla (P.W. 4) and left
\nthere in his absence. The respondent further pleaded that he
\nhad no connection with this gold. He asserted that if at all
\nanybody was  responsible, it  was Jayantilal  Salla, who has
\nbeen examined as prosecution witness in this case.\n<\/p>\n
     The learned Presidency Magistrate by his judgment dated
\nOctober\t 16,   1960,  found   that  the\t  charges  had\tbeen
\nestablished against  the respondent. He rejected the defence
\nstory and convicted the respondent as aforesaid.\n<\/p>\n
     Aggrieved, the  respondent preferred  an appeal against
\nhis conviction\tto the High Court. The appeal was heard by a
\nlearned Single\tJudge (Vimadlal,  J.), who  by his judgment,
\ndated October  13, 1962,  allowed the  appeal, set aside the
\nconviction of  the respondent  and acquitted him. Hence this
\nappeal by the State of Maharashtra against that acquittal.\n<\/p>\n
     The High  Court has  held\t“that  the  prosecution\t has
\nfailed to  prove that  the gold\t found in  the house  of the
\naccused was gold on which duty
\n344<\/span>
\nhad been  evaded, or the import of which was prohibited and,
\nin that\t view of  the matter,  the first and second charges!
\nframed against\tthe  accused  must  fail,  and\tthe  further
\nquestion as  to whether\t the accused  knew that\t the gold in
\nquestion was  smuggled gold does not really arise”. The High
\nCourt refused  to consider  the decision of this Court in S.
\nBanerjee v. S. Agarwal, which was relied upon by the counsel
\nfor the State, with the observation :\n<\/p>\n
\t  “Suffice it  to say  that the\t observations in the
\n     majority judgment of Wanchoo. J. in the said case would
\n     apply only\t if it\twas in\tthe first instance proved by
\n     the prosecution  that the gold in question was smuggled
\n     gold which\t the prosecution  has failed to prove in the
\n     present case.”\n<\/p><\/blockquote>\n
As regards  the third  charge under  Rule 125-11(2) (d) read
\nwith Rule 126-P(2) (iv) of the Defence of India Rules, 1962,
\nthe High  Court held  that the\tprosecution  had  failed  to
\nestablish “that the accused had bought or otherwise acquired
\nthe gold  without being\t a licensed dealer.” In its opinion,
\nthe aforesaid Rules must be interpreted as being confined to
\nacquiring of  ownership and  not to  the mere  acquiring  of
\npossession. It\tfurther held  that there was no “acceptance”
\nof gold\t by the\t accused within the meaning of Rule 126-P(2)
\nof the\tDefence of  India Rules,  1962, because\t the accused
\nbeing away from home, had no choice of accepting or refusing
\nthe same.\n<\/p>\n
     As before\tthe trial  court, here also, learned counsel
\nappearing for  the respondent,\tcontends that the search and
\nseizure by  the police\tof the\tgold from  the house  of the
\nrespondent, was\t illegal, that\tthe information on the basis
\nof which  the police  conducted the search was not produced;
\nand  that  this\t illegality  had  vitiated  the\t trial\tthat
\nfollowed. In  the alternative,\tcounsel submits that Section
\n123 of\tthe Customs  Act, which\t places the  burden  on\t the
\naccused-person to  show that  seized goods  are not smuggled
\ngold, was  not applicable  in the  present case, because the
\nseizure of the gold was not made by, the Customs Authorities
\nunder the  Customs Act,\t 1962, but  by the  Police under the
\nCode of Criminal Procedure. This being the case-proceeds the
\nargument the  burden lay heavily on the prosecution to prove
\nevery ingredient  of the  offences with\t which\tthe  accused
\nstood charged.\tIt is  maintained that\tthe prosecution\t had
\nmiserably failed  to produce  any evidence  to show that the
\ngold in question was smuggled gold.\n<\/p>\n
     Taking the\t first contention  first, it may be observed
\nthat the  police had  powers  under  the  Code\tof  Criminal
\nProcedure to  search and  seize this gold if they had reason
\nto believe that a cognizable offence
\n345<\/span>
\nhad been  committed in\trespect thereof.  Assuming arguendo,
\nthat the  search was  illegal, then also, it will not affect
\nthe validity of the seizure and further investigation by the
\nCustoms Authorities  or the  validity  of  the\ttrial  which
\nfollowed on  the complaint  of the  Assistant  Collector  of
\nCustoms
\n     In Radhakrishan  v. State\tof U.P.\t the appellant was a
\npostman. He  and his  father were  living in the same house.
\nCertain undelivered  postal articles  were recovered from an
\nalmirah in  the house,\tthe key of which was produced by the
\nfather. The  appellant, Radhakishan  was tried and convicted
\nof an  offence under  s. 52  of the  Post offices  Act,\t for
\nsecreting postal  articles. One of the contentions raised on
\nbehalf of  the appellant was that the search and seizure was
\nillegal\t inasmuch,   as\t it  was  in  contravention  of\t the
\nprovisions of  Sections 103  and 105 of the Code of Criminal
\nProcedure. Mudholkar,  J. speaking  for the  Court, repelled
\nthis contention, thus:\n<\/p>\n
\t  “So far as the alleged illegality of the search is
\n     concern ed,  it is sufficient to say that even assuming
\n     that the search was illegal the seizure of the articles
\n     is not vitiated. It may be that where the provisions of
\n     ss. 103  and  165,\t Code  of  Criminal  Procedure,\t are
\n     contravened the  search could be resisted by the person
\n     whose premises  are sought\t to be searched. It may also
\n     be that  because of  the illegality  of the  search the
\n     Court may be inclined to examine carefully the evidence
\n     regarding\t the   seizure.\t  But\tbeyond\t these\t two
\n     consequences no further consequence ensues.”
\n     These observations apply aptly to the instant case.<\/p><\/blockquote>\n
     Again, in\tShyam Lal  Sharma &  Anr. v.  The  State  of
\nMadhya Pradesh, Jaganmohan Reddy, J., delivering the opinion
\nof the\tBench, held that even if the search is illegal being
\nin contravention  with\tthe  requirements  of  Section\t165,
\nCriminal Procedure Code, 1898, that provision ceases to have
\nany   application   to\t the   subsequent   steps   in\t the
\ninvestigation.\n<\/p>\n
     In State  of Kerala  etc. v.  Alasserry Mohammed  etc.,
\nquestion arose,\t whether the failure on the part of the Food
\nInspector to  comply strictly with the statutory provisions,
\nwould vitiate  the trial  and conviction of the respondent ?
\nThis Court answered this question in
\n346<\/span>
\nthe negative,  and referred  with approval  to the decision,
\ndated July  6, 1976, in W.T. Stone, Warden, 74-1055 v. Lloyd
\nCharles Powell\tand Charles  L. Wolff Jr. Warden, 74-1222 v.
\nDavid L.  Rice, wherein\t the Supreme  Court  of\t the  United
\nStates of  America made\t a clear departure from its previous
\ndecision in  the application  of the  exclusionary  rule  of
\nevidence. The  prosecution in  those cases  relied upon\t the
\nevidence of  search and\t seizure,  which  were\tsaid  to  be
\nunconstitutional  and  unlawful.  Mr.  Justice\tPowell,\t who
\ndelivered  the\t leading  majority   judgment,\tmade   these
\npertinent observations:\n<\/p>\n
\t  “Upon examination,  we conclude,  in light of tile
\n     nature and purpose of the Fourth Amendment exclusionary
\n     rule,  that   this\t view\tis  unjustified.   We  hold,
\n     therefore,\t that\twhere  the  State  has\tprovided  an
\n     opportunity for  full and\tfair litigation\t of a Fourth
\n     Amendment claim, the Constitution does not require that
\n     a State  prisoner\tbe  granted  federal  habeas  corpus
\n     relief on\tthe ground  that  evidence  obtained  in  an
\n     unconstitutional search  or seizure  was introduced  at
\n     his trial.”\n<\/p><\/blockquote>\n
In his\tconcurring opinion, Chief Justice Burger highlighted
\nthe injustice  that often  resulted from  application of the
\nexclusionary rule. Said the learned Chief Justice:\n<\/p>\n
\t  “To vindicate\t the  continued\t existence  of\tthis
\n     judge-made rule,  it is  incumbent upon  those who seek
\n     its retention-and\tsurely its  extension-to demonstrate
\n     that it  serves its  declared deterrent  purpose and to
\n     show that\tthe results  outweigh the rule’s heavy costs
\n     to rational  enforcement of  the Criminal Law See. e.g.
\n     Killough v.  United States,  [315 F 2d 241 (1962)]. The
\n     burden rightly  rests upon\t those who  ask\t society  to
\n     ignore trustworthy evidence of guilt, at the expense of
\n     setting obviously\tguilty criminals  free to  ply their
\n     trade.”<\/p><\/blockquote>\n
     What has  been said  above is  more than enough to show
\nthat  the   first  contention\traised\ton  behalf  of,\t the
\nrespondent is devoid of merit.\n<\/p>\n
     As regards the second contention canvassed by Shri Shiv
\nPujan Singh,  we would\tsay that  even\tif  the\t prosecution
\ncannot invoke the provisions of Section 123. Customs Act, to
\nlighten\t the   burden  cast   on  it,  there  is  sufficient
\ncircumstantial\tevidence  to  establish\t that  the  gold  in
\nquestion  was\tsmuggled  gold.\t Before\t dealing  with\tthat
\nevidence,  it\twill  be   useful  to  notice  the  relevant
\nprovisions relating to the charges against the respondent.\n<\/p>\n
347<\/span><\/p>\n
     First, we\ttake up the charges under Section 135 of the
\nCustoms Act, A 1962. The material part of that Section reads
\nas under:\n<\/p>\n
\t  “135.(t) Without  prejudice to any action that may
\n     be taken under this Act, if any person-\n<\/p><\/blockquote>\n
\t  (a) is  in  relation\tto  any\t goods\tin  any\t way
\n     knowingly\tconcerned   in\tany  fraudulent\t evasion  or
\n     attempt at evasion of any duty chargeable thereon or of
\n     any prohibition  for the  time being imposed under this
\n     Act or  any other\tlaw for the time being in force with
\n     respect to such goods, or\n<\/p><\/blockquote>\n
\t  (b) acquires\tpossession  of\tor  is\tin  any\t way
\n     concerned\t in    carrying.    removing,\t depositing,
\n     harbouring, keeping,  concealing, selling or purchasing
\n     or in  any other manner dealing with any goods which he
\n     knows  or\t has  reason   to  believe   are  liable  to
\n     confiscation under Section 111,
\n     he shall be punishable,-\n<\/p><\/blockquote>\n
\t  (i) in  the case  of an offence relating to any of
\n     the goods\tto which  Section 123 applies and the market
\n     price  whereof   exceeds  one   lakh  of  rupees,\twith
\n     imprisonment for a term which may extend to seven years
\n     and with fine .\n<\/p><\/blockquote>\n
\t  Provided  that  in  the  absence  of\tspecial\t and
\n     adequate reasons  to the contrary to be recorded in the
\n     judgment of  the court,  such imprisonment shall not be
\n     less than one year;\n<\/p><\/blockquote>\n
\t  (ii) in  any other  case, with  imprisonment for a
\n     term which\t may extend to three years, or with fine, or
\n     with both”.\n<\/p><\/blockquote>\n
Section 111  enumerates the  categories of  goods which\t are
\nimported into  India and are liable to confiscation. Broadly
\nspeaking,  these   categories  relate  to  goods  which\t are
\nsmuggled into India.\n<\/p>\n
     The  requisite  guilty  knowledge\tor  mens  rea  under
\nclauses (a)  and (b) of Section 135(1) can be established by
\ncircumstantial evidence,  also. In order to substantiate the
\ncharge\tunder\tclause\t(b)   against  the  respondent,\t the
\nprosecution had to prove (i) that he had acquired possession
\nof or  was in any way concerned in keeping or concealing the
\ngold bars;  (ii) that  he knew or had reason to believe that
\nthese gold  bars were  smuggled goods,\tand thus  liable  to
\nconfiscation under Section 1 t l of the Customs Act.\n<\/p>\n
     It is trite law that even in cases where Section 123(1)
\nof the\tCustoms Act  is not  attracted, the  prosecution can
\ndischarge its  burden  by  establishing\t circumstances\tfrom
\nwhich a prudent man, acting pru-\n<\/p>\n
348<\/span><\/p>\n
dently, may  infer that\t in all\t probability  the  goods  in
\nquestion were  smuggled\t goods,\t and  the  accused  had\t the
\nrequisite guilty  knowledge in\trespect thereof. The leading
\ncase is:  Issardas Daulat Ram and ors. v. The Union of India
\n& ors.\tIn<\/a> that\t case, in  reaching the\t conclusion that the
\ngold had  been smuggled, the Collector of Customs considered
\nthe credibility\t of the\t story put  forward by the appellant
\nabout the  purchase of\tthe gold and also the conduct of the
\nappellant in  trying to\t get the gold melted so as to reduce
\nits fineness  by mixing\t silver with  it, in  an attempt  to
\napproximate the resultant product to licit gold found in the
\nmarket. The  ratio of  this decision  was followed  by\tthis
\nCourt  in   Labhchand  Dhanpat\t Singh\tJain   v.  State  of
\nMaharashtra<\/a>: The  appellant-accused therein  was  trying  to
\nenter the  Railway compartment at Bombay Station. Seeing his
\nnervousness, the Rail way police questioned him and searched
\nhis person  and recovered  nine bars  of gold  with  foreign
\nmarkings. The  accused put  forward an incredible story with
\nregard to  the possession of the gold. This Court held, that
\nin the\tcircumstances of  the case,  an inference could very
\nwell be\t drawn that  the gold  must have been imported after
\nthe law\t passed in  1948, restricting  its entry;  that\t the
\nburden of  proving an  innocent receipt of gold lay upon the
\nappellant under\t Section- 106,\tEvidence Act  and  that\t the
\ntotality of  facts proved  is enough  to raise a presumption
\nunder Section  114, Evidence  Act that\tthe  gold  had\tbeen
\nillegally imported  into the country, so as to be covered by
\nSection 111(d) of the Customs Act.\n<\/p>\n
     It is  to be  noted that  in Labhchand’s  case  (ibid).
\nSection 123  of the  Customs Act  was not applicable, as the
\nseizure of the gold was by the police and not by the Customs
\nofficer.  The\tCourts\tin   that  case\t did  not  use\tthis
\npresumption under  Section 123\tof the\tEvidence Act against
\nthe appellant.\tThey relied upon the circumstantial evidence
\nto  raise   the\t necessary  inference  with  regard  to\t the
\ncharacter of  the gold\tseized and  the\t possession  of\t the
\nrequisite mens\trea by the accused. The ratio of Labhchand’s
\ncase (ibid)  applies a\tfortiori to  the facts\tof the\tcase
\nbefore us.\n<\/p>\n
     In Balumal\t Jamnadas Batra\t v. State  of Maharasthra  a
\nBench of  this Court  to which one of us (Sarkaria J.) was a
\nparty, eleven  boxes were seized by the Police from Room No.
\n10 at  Sheriff Deoji  Street, Bombay.  On opening the boxes,
\ngoods bearing  foreign markings\t such as  “Made in Germany”,
\nwere found.  A rent  receipt in\t the name  of the accused in
\nrespect of Room No. 10, in the occupation of the accused
\n349<\/span>
\nwas also  recovered. It was held by this Court, that even if
\nthe goods  A bearing foreign markings, were not seized under
\nthe Customs  Act, and  as such Section 123(1) of the Act was
\nnot  attracted,\t  the  aforementioned  circumstances,  under
\nSection 114  read with\tSection 106 of the Evidence Act were
\nsufficient to  presume that  the accused knew that the goods
\nhad been smuggled or imported in contravention of law.\n<\/p>\n
     In the  instant case  while holding that the respondent
\nwas in\tconscious possession  of the  gold bars in question,
\nthe High Court has acquitted him only on the ground that the
\nprosecution had\t failed to  prove that\tthe gold in question
\nhad  been   imported  after   1947  without   the  necessary
\npermission of  the Reserve  Bank, or without payment of duty
\nand that the further question as to whether the accused knew
\nthat it was smuggled gold “does not really arise”. With this
\nreasoning the  High Court  acquitted the  respondent on\t the
\nfirst two  charges under Section 135 of the Customs Act. The
\nHigh  Court   overlooked  several   tell-tale  circumstances
\nappearing  in  evidence\t which\tunerringly  pointed  to\t the
\nconclusion that\t the gold  if question\twas  smuggled  gold.
\nThese circumstances  are. (a)  the gold biscuits in question
\nbore foreign markings which proclaimed their foreign origin.\n<\/p>\n
(b) This gold was of 24 carat purity which was not available
\nin India  at the  material time. This circumstance reinforce
\nthe inference  of its  being smuggled  gold. (c)  These gold
\nbiscuits were found concealed and stitched in the folds of a
\njacket specially  prepared for\tthis purpose.  (d) The gold,
\nwas in\tthe shape  of gold  biscuits and  was of huge value,
\nwhich at  the then  prevailing market rate was Rs. 1,85,000.\n<\/p>\n
(e) After the seizure of this gold the accused absconded and
\ncontinued to be a fugitive from justice till March 14, 1962.\n<\/p>\n
     The circumstances catalogued above irresistibly read to
\nthe conclusion\tthat the  gold in question is smuggled gold,
\nhaving been  recently brought  into  India  from  a  foreign
\ncountry without\t payment of  duty, and\tfurther it  had been
\nbrought into  India in\tcontravention  of  the\tNotification
\ndated March  25, 1947 issued by the Central Government under
\nSection\t 8(1)  of  Foreign  Exchange  Regulation  Act,\t1947
\nprohibiting  the   import  into\t  India\t gold\twithout\t the
\npermission of  the Reserve  Bank. As  already noticed,\tthis
\ngold was  in the  shape of  biscuits of\t 24 carat purity and
\nbore foreign markings. The accused respondent-as held by the
\ncourts\tbelow-was   found  in\tconscious  ‘possession’\t  or
\n‘keeping’ of  this gold\t of foreign  origin about  15  years
\nafter its  import into\tIndia had  been banned Therefore, it
\nwas for the accused respondent
\n350<\/span>
\nto show\t that  it  had\tbeen  brought  into  India-with\t the
\npermission of  the Reserve  Bank. The existence of this fact
\nviz., whether  it had  been imported  with  or\twithout\t the
\nnecessary permission  of the Reserve Bank, was matter within
\nthe peculiar  knowledge of  the accused-respondent.  It was,
\ntherefore, for\tthe accused  to rebut  the  inference  which
\narose under  Section 114, Evidence] Act from the surrounding
\ncircumstances of  the case,  that it  was  contraband  gold,
\nsmuggled into India. Once it is held that the accused was in
\nconscious possession  or “keeping” of this smuggled gold, it
\nwill follow  as a  necessary corollary therefrom that he had
\nthe mens  rea requisite under clauses (a) and (b) of Section
\n135(1). It  may be  remembered that  smuggling, particularly
\nof gold, into India affects the public economy and financial
\nstability of  the country. The provisions of Section 135 (1)
\nand like  statutes which  are designed to suppress smuggling
\nhave to\t be construed  in accordance  with the Mischief Rule
\nfirst enunciated  in Heydons  case.  Accordingly  the  words
\n“acquires possession”  or keeping”  in clause (b) of Section
\n135(l) are not to be restricted to “possession” or “keeping”
\nacquired as  an owner  or a  purchaser of  the goods. Such a
\nnarrow construction-which  has been  erroneously adopted  by
\nthe High  Court-in our\topinion, would\tdefeat the object of
\nthese provisions and undermine their efficacy as instruments
\nfor suppression of the mischief which the Legislature had in
\nview.  Construed  in  consonance  with\tthe  scheme  of\t the
\nstatute, the  purpose of  these provisions  and the context,
\nthe  expression\t  “acquires  possession”  is  of  very\twide
\namplitude and  will certainly  include\tthe  acquisition  of
\npossession by  a person in a capacity other than as owner or
\npurchaser.  This   expression  takes  its  colour  from\t the
\nsucceeding phrase  commencing with the word “or” which is so
\nwidely worded  that even the temporary control or custody of
\na carrier,  remover, depositor, harbourer, keeper, or dealer
\nof any\tgoods which  he knows or has reason to believe to be
\nsmuggled goods\tor prohibited  goods (liable to confiscation
\nunder Section  111) cannot  escape the\ttentacles of  clause\n<\/p>\n
(b). The  expressions  “keeping”  and  “concealing”  in\t the
\nsecond phrase of clause (b) also cover the present case.\n<\/p>\n
     From the  above discussion,  it is\t clear that the High
\nCourt was  in error  in\t acquitting  the  appellant  of\t the
\ncharges under Section 135(1), (a) & (b) of the Customs Act.\n<\/p>\n
     This takes us to the charge under Rule 126H(2) (d) read
\nwith Rule  126P(2)(iv) of  the Defence of India Rules, 1962.
\nThese Rules  so far  as material  for our  purpose,  may  be
\nextracted as under:\n<\/p>\n
351<\/span><\/p>\n
     “126H(2). Save as otherwise provided in this Part,-\n<\/p><\/blockquote>\n
\t  (d) no  person other\tthan a dealer licensed under
\n     this Part\tshall buy  or otherwise\t acquire or agree to
\n     buy or  otherwise acquire,\t gold, not  being  ornament,
\n     except,\n<\/p><\/blockquote>\n
\t  (i) by succession, intestate or testamentary or .\n<\/p><\/blockquote>\n
\t  (ii) in  accordance with  a permit  granted by the
\n\t       Board in this behalf.”\n<\/p><\/blockquote>\n
     “126P(2) . Whoever,-\n<\/p><\/blockquote>\n
\t  (ii) has  in his  possession or  under his control
\n\t       any quantity  of gold in Contravention of any
\n\t       provision of this Part;\n<\/p><\/blockquote>\n
\t  (iv) buys,  or otherwise acquires, or accepts gold
\n\t       in contravention\t of any\t provision  of\tthis
\n\t       Part,
\n     shall be punishable with imprisonment for a term of not
\n     less than\tsix months  and not  more than two years and
\n     also with fine.”<\/p><\/blockquote>\n
     The High  Court has  held that these Rules do not apply
\nbecause the  accused respondent\t had not acquired possession
\nof these  gold biscuits\t by purchase or otherwise within the
\nmeaning of  these Rules.  Such a narrow construction of this
\nexpression, in our opinion, will emasculate these provisions
\nand render  them ineffective  as a weapon for combating gold
\nsmuggling. As  was pointed  out by this Court in Balakrishna
\nChhaganlal v.  State  of  West\tBengal;\t Rule  126P(2)\t(ii)
\npenalises a  person who\t has in\t his possession or under his
\ncontrol\t any  quantity\tof  gold  in  contravention  of\t any
\nprovision of  this! Part,  and the Court can not cut back on
\nthe width  of the language used, bearing in mind the purpose
\nof plenary  control the\t State wanted to impose on gold, and
\nexempt smuggled\t gold from  the expression  any quantity  of
\ngold” in that sub-rule. These provisions have, therefore, to
\nbe specially  cons trued in a manner which will suppress the
\nmischief and advance the object which the Legislature had in
\nview. The  High Court was, in error in adopting too narrow a
\nconstruction which  tends to  stultify the  law. The  second
\ncharge\tthus   had  been   fully  established\tagainst\t the
\nrespondent.\n<\/p>\n
     Mr. Shiv  Pujan Singh, for the respondent, submits that
\nthis prosecution  has been  brooding over  the head  of\t the
\nrespondent for\tmorel than  eleven years  and that  the arch
\ncriminal who  was the owner of the gold biscuits in question
\nhas escaped making the respondent a scapegoat It
\n352<\/span>
\nis stressed  that the  accused is  a first  offender and  he
\nshould be released on probation.\n<\/p>\n
     Undoubtedly, this\tlong delay  is a factor which should
\nalong with the other circumstances, be taken into account in
\nmitigation of  the sentence.  Even so,\tin a  case  of\tgold
\nsmuggling we  are loath\t to accord  to\tthe  accused,  found
\nguilty, the  benefit of\t the  Probation\t of  Offenders\tAct.
\nSmuggling of  gold not\tonly affects  public,  revenues\t and
\npublic economy but often escaped detection.\n<\/p>\n
     For the  foregoing reasons,  we allow  this appeal, set
\naside the  acquittal of\t the accused,  Natwarlal  Damodardas
\nSoni,  and  convict  him  under\t Section  135(1)  (a)&(b)  .
\nHowever, taking\t into account  all the\tcircumstances of the
\ncase, particularly the fact that these criminal proceedings,
\nlike sword  of damocles,  have been hanging over the head of
\nthe respondent\tfor more  than eleven years, we sentence him
\ncumulatively on these two counts, to six months imprisonment
\nand a  fine of\tRs. 2,000,  and in  default, to\t suffer four
\nmonths further\tImprisonment. We  further convict  him under
\nRule 126P(2)  of  the  Defence\tof  India  Rules,  1962\t and
\nsentence  him  to  six\tmonths\trigorous  imprisonment.\t The
\nsentence on  all the counts shall run concurrently. The bail
\nof the accused-respondent is cancelled. He must surrender to
\nserve out the sentence inflicted on him.\n<\/p>\n
P.B.R\t  Appeal allowed.\n<\/p>\n
353<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of Maharashtra vs Natwarlal Damodardas Soni on 4 December, 1979 Equivalent citations: 1980 AIR 593, 1980 SCR (2) 340 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh PETITIONER: STATE OF MAHARASHTRA Vs. RESPONDENT: NATWARLAL DAMODARDAS SONI DATE OF JUDGMENT04\/12\/1979 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH REDDY, O. CHINNAPPA […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-5473","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of Maharashtra vs Natwarlal Damodardas Soni on 4 December, 1979 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-maharashtra-vs-natwarlal-damodardas-soni-on-4-december-1979\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Maharashtra vs Natwarlal Damodardas Soni on 4 December, 1979 - 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