TaxTMI 
TaxTMI 
1979 (1) TMI 113
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....de 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 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 briefl....
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....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....
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.... 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. (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 the 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....
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....pport 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 this 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 handwriting 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.1) on the 16th September 1966 at 6.15 P.M. was found to have on his....
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.... 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 Customs 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. 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.1) 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 p....
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....ptives 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 alone in one room with some Customs Officers who continuously interrogated me, theatened 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 a....