P. Shanker Lal v. The Assistant Collector Of Customs, Madras

S.M. Sikri, J.

1. Criminal Appeal No. 52 of 1965, by special leave, is by P. Shanker Lai, hereinafter referred to as accused No. 1, and Criminal Appeal No. 104 of 1965, by special leave, is by M.S. Ammen, hereinafter referred to as accused No. 2, and Nagoor, hereinafter referred to as accused No. 3. The above three accused were tried in the Court of the Fifth Presidency Magistrate on a complaint filed by M.A. Rashid, Assistant Collector of Customs, Madras. The complaint was:

On information that smuggled goods were being carried in it, the motor car bearing registration No. MSX 4823 was intercepted as the same was coming out of No. 10, Second Main Road, Adayar, by the Customs Officers at about 11 P.M. on 19th March, 1962. Immediately on interception the driver of the car jumped out and escaped but Accused 1 to 3 mentioned above who were the other occupants of the car were apprehended. The car on examination was found to contain the following goods:

Thereupon on 20th March, 1962, the premises No. 10, Second Main Road, Adayar, was searched. Accused No. 2 opened the door of the aforesaid premises with the help of the keys seized from him earlier and which were handed over to him for purposes of opening. As a result of the search the following goods were recovered.

78 Numbers empty Plywood cases with lids bearing the following marks.

(a) other packing materials....

It was further alleged in the complaint that the investigations revealed that the goods which had been seized were smuggled from Ceylon and landed near Chidambaram and were removed from there by lorries and private cars to Madras for storage and disposal in the city with the assistance of accused No. 1. It was further alleged that accused No. 3 had actually accompanied the goods from Ceylon in a launch which came to Madras, and that accused No. 2 was responsible for storage of the smuggled goods and actually participated in the clandestine disposal piecemeal with the assistance of accused No. 1. On these facts it was submitted that the three accused had committed offences under Section 167(81) of the Sea Customs Act, 1878, hereinafter referred to as the Act.

2. The prosecution examined P.W. 2, V.S. Sheik Adam, who was then the Rummaging Inspector. He deposed about the interception of the car and the recovery of the articles mentioned in the complaint. He also deposed about the search on March 20, 1962, of the premises No. 10, Main Road, Adayar, Madras. He further testified that the import of Singer sewing needles was only permitted under licence under the Import Control Order, 1955. On cross-examination he stated that import of hair clippers, blades and needles was totally prohibited. He admitted that "goods seized used to be sold in public auction. Auction of confiscated goods are held in the ports of India like Bombay, Calcutta and Madras." It is this statement which Mr. Nambiar, learned Counsel for accused No. 1, relies on to show that the prosecution has not discharged the onus of establishing that the accused knew that the goods had been imported without payment of duty and that they had been unlawfully imported.

3. P.W. 1, K.S. Dilipsingh, was the Assistant Collector of Customs, Madras, on March 20, 1962. On that day he recorded the statement of accused No. 1--Ex. P. 1. He says that he recorded the statement of accused No. 1 in English although accused No. 1 was answering questions in colloquial Hindi. But he says that he read over to accused No. 1 the statement after having translated it in Hindi. In cross-examination he stated:

While I was recording same Ex. P. 1 accused 1 first spoke some lies and when I repeatedly questioned him accused 1 came forward with truth.

These two facts are relied on by the learned Counsel to find the argument that the confession is neither voluntary nor can be taken to be a true account of what was stated by accused No. 1.

4. On March 20, 1963, P.W. 4, Preventive Officer, Madras Customs, took the statement of accused No. 2--Ex. P. 10. It was written by accused No. 2 in his presence. In the evening accused No. 2 gave another statement Ex. P. 11. It was also written by accused No. 2.

5. Accused No. 3 made a statement before P.W. 5, Ex. P. 12.

6. The Fifth Presidency Magistrate, Egmore, Madras, relying on the above evidence, and Exs. P1, P10 and P11, and P12, convicted the three accused under Section 167(81) of the Act, and sentenced them to undergo rigorous imprisonment for six months each. He held that the import of seized goods was either totally prohibited or was only permitted under licence issued under the Import and Export Control order, 1955. He held that the confessions were voluntary and showed that the accused were really the persons concerned in dealing with goods which were chargeable with duty which had not been paid or with goods in respect of which import and export was prohibited or restricted for the time being in force.

7. The accused filed revisions to the High Court. The High Court rejected the revisions and confirmed the convictions and sentences imposed on the accused. The High Court relied on the confessions, the evidence regarding the interception of the car and the search of the premises.

8. Mr. Nambiar says that the confession, Ex. P1, made by accused No. 1 was not voluntary and, at any rate, could not be taken to record exactly the statement made by accused No. 1. He says that it is not voluntary because the accused was in custody for 24 hours and he was grilled for a number of hours. He further says that P.W. 1 admits that in the beginning the accused was not speaking the truth. He urges that consequently the confession should not be relied on. But the accused in his statement before the Court did not say that the confession was not given voluntarily. On the contrary he definitely said that he gave the statement recorded in Ex. P1, but he gave it in Hindi. He never said that what was contained in Ex. P1 was not true. Further there is no reason to disbelieve the statement of the officer who recorded the confession. The learned Counsel relies on the Customs Manual, in which it is stated that rewards are given to some officers. But the rule which he read did not apply to Assistant Collectors and P.W. 1 who recorded the confession was an Assistant Collector. In the circumstances it is difficult to accept the contention of the learned Counsel that the confession was not voluntary or that it did not contain a true record of what accused No. 1 stated before P.W. 1.

9. The learned Counsel then contends that Section 167(81) of the Act requires the establishment of mens rea and the prosecution must prove that the accused knew that no duty had been paid on the seized goods or that they had been imported in contravention of law. He says that it is admitted by the prosecution witnesses that auctions of similar goods used to take place. But, in our view, in the circumstances of this case, the prosecution has discharged the burden which lay on it. The manner in which and the time at which the car was intercepted, the manner in which the driver ran away and the quantity and the types of goods which were recovered from the car clearly show that the goods had been imported in contravention of law. These facts corroborate the confessional statement of accused No. 1, which is a very detailed one. It gives detailed particulars of various matters which could not have been within the knowledge of the Customs Authorities. After giving all these particulars he stated:

I know that goods had been smuggled from Colombo and that these belong to S.M.A. Ibrahim, whose servant Ameen is.

10. The last contention he raises is that Section 411, Cr.P.C., is bad as it violates Article 14 of the Constitution. He says that if accused No. 1 had been tried in the Mofussil, and not in the City of Madras, he would have had a right of appeal, but by virtue of Section 411 he cannot file an appeal as his sentence is less than six months. This question was considered by the Madras High Court in Re Rajoo (A.I.R. 1963 Mad. 82) In our view, the High Court was right in holding that, in view of the geographical and historical considerations, the existence of differences in the constitution and jurisdiction of the courts in the Mofussil and the City of Madras did not violate Article 14.

11. In view of the above reasons, we must confirm the judgment of the High Court and dismiss the appeal of accused No. 1. He must surrender to his bail.

12. Mr. Ram Reddy, the learned Counsel appearing for accused No. 2 and accused No. 3, also urges that the confessions were not voluntary and should not be relied on. He is, however, unable to give any cogent reasons why the confessions should not be held to have been given voluntarily. The confessions are detailed. In P10 accused No. 2, apart from giving other information, stated that there were still smuggled goods at No. 10, Main Road, Adyar, and on a search being made goods were found. It would be recalled that the keys with which the premises was opened by accused No. 2 were seized from him at the time the car was intercepted on March 19, 1962. In Ex. P11, the second statement given by accused No. 2, he gave various facts which could not have been within the knowledge of the Customs Authorities. In view of his confession it is quite clear that he knew that the seized goods were smuggled goods.

13. As far as accused No. 3 is concerned, according to his confession, he came along with the goods in a launch from Ceylon and he landed near Chidambaram. He gave details which could not have been within the knowledge of the Customs Authorities. If his confession is believed, there is no doubt that he was directly concerned in the unlawful importation of the goods.

14. The learned Counsel finally contends that the confessions were not admissible under Section 25 of the Evidence Act. He relies on Raja Ram Jaiswal v. State Of Bihar ( (1964) 2 SCR 752), But we are concerned with a customs officer and as far as customs officers are concerned this Court held in State Of Punjab v. Barkat Ram (1962) 3 SCR 338 that customs officers are not police officers for the purpose of Section 25 of the Evidence Act. The case of Raja Ram Jaiswal ( (1964) 2 SCR 752) is distinguishable because by virtue of the provisions of Section 77(2) read with Section 78(3) of the Bihar and Orissa Excise Act, 1915, an Excise inspector or Sub Inspector in the State of Bihar was deemed to be an officer in charge of a police station and was entitled to investigate any offence under the Excise Act. There is no conflict between Raja Ram Jaiswal's ( (1964) 2 SCR 752) case and the State Of Punjab v. Barkat Ram ( (1962) 3 SCR 338). In the result the appeal of accused No. 2 and accused No. 3 also fails and is dismissed. They must now surrender to their bail.