Inder Singh and Another vs The State

R.P. Khosla, J.—In these revision petitions (Criminal Revisions Nos. 10 and 41 of 1962) from the judgment of Additional Sessions Judge, Ludhiana the points that arise for decision are:

(i) whether the seizure of gold in question was under the Act (Sea Customs Act No. 8 of 1878) throwing the burden of proof on the accused-petitioners that it was not smuggled gold;

(ii) if the seizure was not under the said Act, has the prosecution succeeded in proving (a) that the gold was smuggled gold and (b) that the petitioners were dealing with the said gold knowingly that the same was smuggled.

On 29th of November, 1957 at about 10 A.M. pursuant to a raid effected, three bars of gold with foreign marking were recovered from each of the petitioners (Inder Singh and Naranjan Singh petitioners in Criminal Revision No. 10 of 1962 and Sajjan Singh petitioner Criminal Revision No. 41 of 1962). The gold was taken into possession and a case was registered u/s 411 of the Indian Penal Code. The petitioners were tried upon the charge of having been found in possession of stolen property. They were, however, discharged, for the prosecution allegations did not get proved. The recovered gold was thereafter handed over, to the customs authorities for such action as advised. These facts were not controverted, and were otherwise too founded on evidence.

The counsel for the petitioners at the outset questioned the authenticity of the recovery. It was contended that of the non-official witnesses to the recovery Ghulla Ram P.W. 3 was a stooge of the police and had been supporting several of prior police cases and Chhabil Das P.W. 4, the other, had been declared hostile and, therefore, unreliable. I was led through the entire evidence relating to the recovery consisting of statements of said non-official and the other official witnesses and the conclusions arrived at by the Courts below. I find that the evidence as respects this aspect had been properly appreciated and the conclusion that said gold bars had been recovered from the petitioners in the circumstances alleged is not assailable and cannot, therefore, be disturbed.

Mr. Ranade appearing on behalf of Sajjan Singh in Criminal Revision No. 41 of 1962 urged but without seriously pressing that the joint trial of the petitioners was illegal and repugnant. The basis of the objection raised were not properly formulated, nor otherwise the objection appeared to be sound. The three petitioners were sitting on a cot and the recoveries were made during the course of one and the same transaction. Their joint trial, therefore, was in order.

The real points that require determination have already been indicated at the outset.

The answer to the first question, namely, whether the seizure was under the Act has to be replied in view of the observations of the Supreme Court in Gian Chand and Others Vs. The State Of Punjab, In similar circumstances when the police had recovered gold pursuant to a secret information and prosecuted the culprits for having been in possession of stolen smuggled gold, their Lordships of the Supreme Court observed that the seizure was not under the Act, and, therefore, the accused could not have been saddled with the onus probandi as contemplated under the provisions of section 178(A) of Sea Customs Act that what was recovered was not smuggled gold. Obviously, therefore, in the premises it would be for the prosecution to prove that the recovered gold was smuggled gold. As far as this aspect is concerned, the Courts below obviously were in error. The matter will have to be examined from the standpoint that the onus lay on the prosecution.

The learned counsel appearing for the State, in the first instance contended that the seizure was under the Act. In support he relied upon the provisions of section 178 of the Sea Customs Act, which read-

Any thing liable to confiscation under this Act may be seized in any place, in India either upon land or water, or within the Indian Customs waters, by any officer of Customs or other person duly employed for the prevention of smuggling.

The argument was that "or other person" included the police officials. It is plain that the police officials generally could not have been covered by the term "or other person" and there is nothing otherwise to show that the Ludhiana Police was specifically so authorised. The learned counsel for the State had frankly admitted that police officials of Ludhiana were not so authorised by any order or notification. Seizure obviously, therefore, could not be held to have been under the Act. It is thus for answer whether the prosecution had succeeded in proving-

(a) that the recovered gold was smuggled gold;

(b) that the petitioners were dealing with it knowing that it was smuggled gold.

The learned counsel for the State frankly admitted that there was no direct evidence on the record to prove that the recovered gold was smuggled gold. He however, relied upon the following two items to discharge the onus that obviously lay in the circumstances on the prosecution:-

(1) that the ownership of the recovered gold was not claimed by the petitioners;

(2) that the recovered gold had foreign marking.

It has to be observed that neither of the said two factors proved that the gold was smuggled gold. The absence of claim of ownership relating to the recovered gold could not anywise prove that the gold was smuggled gold. Nor for the matter of that foreign marking for the reason that gold with foreign marking admittedly was current in the bullion market could advance the prosecution case.

Obviously, therefore, on the face of it, the prosecution has failed to prove that the recovered gold was smuggled gold. On this short ground, the petitioners ought to succeed.

Even on the other ground, namely, that the petitioners were not shown to have been dealing with the recovered gold knowingly that it was smuggled gold, the penal provisions (section 167(81)) of the Sea Customs Act cannot be held to have been attracted. These petitions must, therefore, succeed and are accordingly allowed.

The result is, that the impugned judgments convicting and sentencing the petitioners are set aside. Petitioners are on bail, they need not surrender to their bail bonds. The same stand cancelled.