minal Appeal No 152 of 1962
710 Appeal by special leave from the judgment and order dated April 4 1962 of the Rajasthan High Court in D D Criminal Appeal No 505 of 1961
section K Kapur section Murthy B N Kirpal and K K lain for the appellant
H R Khanna and B R G K Achar for P D Menon for the respondent
August 29 1963
The judgment of the Court was delivered by DAS GUPTA J
This appeal by special leave is against a conviction and sentence under section 16781 of the 
The appellant was acquitted by the trial court but on appeal by the State of Rajasthan the Rajasthan High Court set aside the order of acquittal and convicted the appellant under section 16781 of the  and sentenced him to rigorous unprisonment for one year
The prosecution case was that on receipt of some information that gold smuggled from Pakistan was being carried Lal Singh Sub Inspector of the Check post of Barmer followed the appellant into a railway train at Luni railway station and in the running train between the stations of Kerla and Pali searched appellant s person and found that he was carrying 286 tolas of gold in a pouli under his trousers
In the reasonable belief that these were smuggled goods Lal Singh seized the gold
The gold that was seized consisted of six blocks bearing marks 999 N M Rothschild  Sons 22 bars bearing marks 999  3 small pieces of gold and one pair of murkies
Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the Superintendent Land Customs Barmer
By an order of the Collector of Customs New Delhi dated July 191957 this gold was confiscated and a fine of Rs 10000 was imposed on the appellant
Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under section 16781 of the 
The prosecution claimed that under section 178 A of the  the burden of proving that gold was not smuggled lay on the accused
Even apart from that the prosecution claimed it was clear that the gold had been smuggled
It was alleged that the appellant had carried 711 the gold knowingly with intent to evade the regulations prohibiting the import of gold Into India
The main defence of the accused who pleaded not guilty was that no gold was recovered from him
The trial court held that the prosecution had failed to establish the recovery of gold from the accused
It further accepted the defence contention that Lai Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made
According to the learned Magistrate the seizure if any had not been made under the and so had not been made under the Act within the meaning of section 178 A and there was no question of the accused having to prove that the gold was not smuggled
On the evidence adduced by the prosecution he was not convinced that it was smuggled gold
Accordingly he acquitted the accused
The High Court came to contrary findings on all these points
It held that the evidence of Lal Singh as regards the seizure should be believed and that the seizure of the gold from the accused had been proved satisfactorily
It was also of the opinion that Lal Singh had authority to seize the gold at the place where the seizure was made and that section 178 A of the applied
In the opinion of the High Court the accused had failed to prove that the gold was not smuggled and that under the provisions of section 178 A as also on the evidence in the case the gold had been established to be smuggled gold
All the ingredients of the offence according to the High Court had been proved and therefore the accused was convicted and sentenced as mentioned above
Three points were raised before us by Mr section K Kapur in support of the appeal
The first was that the High Court was not justified in disturbing the trial court s finding that the seizure of the gold from the accused had not been proved
The second point urged was that the High Court had fallen into an error in thinking that Lal Singh had authority to seize the gold at the place where the seizure was made
The third contention was that in any case even if section 178 A applied and it was found that the gold was smuggled the prosecution had failed to prove the necessary mens rea in the accused that was necessary to constitute the offence
712 On the question of seizure of gold from the accused the prosecution relied on the testimony of Lal Singh himself
Lal Singh gave a detailed account as to how he followed the accused into the train at Luni station and in the running train conducted the search of his person in the presence of witnesses and recovered from his possession from a pouli tied beneath his trousers the gold identified in court as exhibit PM 1 32
The seizure Memo
which he claimed to have prepared at the time of the seizure was marked Exh
This document mentions the names of three persons as search witnesses
None of these was examined by the prosecution
The third name mentioned in Exh
P 3 is Pukh Raj son of Awasthi Mal aged about 22 years resident of Ajit
The defence examined a Pukh Raj who gave his father s name as Basti Mal and who was resident of Ajit and stated that he was the only Pukh Raj in that village
The High Court seems to have doubted the indentity of Pukh Raj examined as defence witness as the Pukh Raj mentioned in the seizure list
This finding has been attacked by Mr Kapur as un justified
Whether or not the Pukh Raj examined as defence witness is the same as the person whose name is mentioned in the seizure list is not however of much consequence for the fact remains that the prosecution has not got the evidence of any of the witnesses in whose presence the search and seizure are said to have been made to support Lal Singh s evidence
The learned Magistrate gave this failure of the prosecution to examine the witnesses as the main reason for his inability to accept Lal Singh s testimony
The High Court has accepted Lal Singh s testimony but unfortunately the judgment does not indicate that the learned judges of the High Court took into consideration this fact that the search witnesses had not been examined
We have therefore thought it necessary to examine the evidence for ourselves to see whether the seizure as alleged by the prosecution has been proved
Lal Singh s evidence on the point has already been mentioned
It has to be noticed that the defence witness No 2 Poonam Chand has also spoken about the search
His evidence is that police conducted search in the compartment when the train was enroute from Luni to Pali and that the police took search of the 713 accused Hukma present before the court and of two or three more persons named Kesrimal and Tarachand
The witness added no gold was recovered from the possession of the accused Hukma Ram but admitted that in the same compartment a purse was recovered
It has to be noticed that when Lal Singh was examined no suggestion was made to him in cross examination that any other person had been searched in the compartment
It is not unreasonable to think therefore that when Poonam Chand is speaking of search in the com partment of Hukma and the find of a purse there though stopping short of saying what was recovered from it his evidence unwittingly supports the story given by Lal Singh about the search and the recovery of the gold
It does not stand to reason that if two other persons bad been searched and gold had been found within one of them this appellant a pointsman in the Railway should be falsely implicated and the person from whom the recovery of gold was made should have been allowed to escape
The accused suggested in his statement that Lal Singh was inimically disposed towards him because on one occasion Lai Singh had asked him to serve water and he had not done it at once
There was no suggestion about this incident to Lai Singh in his cross examination and we are convinced that this is entirely false
On a consideration of Lal Singh s evidence along with the evidence of appellant s own witness Poonam Chand we are convinced that the story of recovery of gold from the accused is true
The reason why the three witnesses mentioned in the seizure list have not come forward to support the prosecution case is in our poinion not that the story of search and seizure as given by Lal Singh is not true but that these witnesses have been gained over
This brings us to Mr Kapur s main contention namely that Lal Singh was not a Customs Officer for the place where the seizure was made and so the seizure was not under the  taken with the provisions of the 
The answer to this contention depends on the construction of the notification appointing Customs Officers for the areas adjoning the frontier between West Pakistan and India
The notification as it stands after an amendment in 1956 runs 46 2 section C India64 714 as follows 1
In exercise of the powers conferred by Sub section 1 of section 3 of the 19 of 1924 read with the notification of the Government of India in the late Finance Deptt
Central Revenues No 5444 dated 1st December 1924 the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontiers separating West Pakistan from India the officers of the Government of Rajasthan specified in the schedule hereto annexed to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi The Schedule All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer Bikaner Ganganagar Jaisalmer and Jalore in the State of Rajasthan Asking us to give a restricted meaning to the word adjoining in the notification Mr Kapur has suggested that this notification gave authority to the Customs Officers only for the areas within a few miles from the border He contended next that even if this be not accepted the notification on a reasonable interpretation gave authority only to the officers of the Districts mentioned in the Schedule to function as Customs Officers in those Districts and nowhere else
The trial court appears to have accepted this construction and as admittedly the place of seizure was not in any of the District mentioned in the Schedule it held that Lal Singh was not authorized to search the accused or to seize the gold
The High Court on the contrary has taken the view that each of the officers mentioned in the Schedule has been appointed a Customs Officer for the entire area which has jurisdiction of the Collector of Land Customs Delhi
In our opinion this is the correct and only possible construction
Section 3 of the authorizes the Central Government to appoint by notification in the official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification
The section also authorizes 715 the Central Government to appoint by a similar notification such other persons as it thinks fit to be Customs Officers for the same area
Foreign frontier has been defined in section 2 cl
e of the Act as the frontier separating any foreign territory from any part of India
Land Customs area has been defined in cl
g of the same section as any area adjoining a foreign frontier for which a Collector of Land Customs has been appointed under section 3
From the definition of foreign frontier in cl
e it is clear that an area adjoining the frontiers separating any foreign territory from any part of India is within these words
What then is meant by the word adjoining  According to Mr Kapur only a few miles near the frontier can be considered to be adjoining the frontier
We can see no justification for such a restricted construction of the word  adjoining
It is true that the village next to the frontier adjoins the frontier
It is equally correct however to describe the entire District nearest the frontier as adjoining the frontier  and we can see nothing wrong in the entire State of Rajasthan adjoining the West Pakistan Frontier
It appears to us that the Central Government treated the whole compact block consisting of the State of Punjab State of Jammu  Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area ad joining the West Pakistan frontier and for this one area it appointed a Collector of Land Customs
This appears clear from the order appointing the Collector of Central Excise Delhi to be the Collector of Land Customs Notification No 2L Customs dated 25th January 1958 taken with Rule 2ii A i of the Central Excise Rules according to which Collector means in the State of Punjab Jammu and Kashmir and Rajasthan and in the Union Territories of Himachal Pradesh and Delhi the Collector of Central Excise Delhi
In other words the jurisdiction of the Collector of Central Excise Delhi is not only over Delhi but also it extends to the States of Punjab Jammu  Kashmir and Rajasthan and the Union Territories of Himachal Pradesh and Delhi
It was for this entire area that the collector of Central Excise Delhi was appointed Collector of Land Customs
The resultant position therefore is that for this entire area of Punjab Jammu and Kashmir Rajasthan Himachal and Delhi one person has been ap 716 pointed Collector of Customs
When therefore the Central Government proceeded next to appoint Land Customs Officers and stated that certain officers as specified in the schedule were appointed Land Customs Officers for the areas adjoining the land customs frontiers separating West Pakistan from India and added the words that they were to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi it appears to us to be quite clear that every officer mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole areas which forms the Jurisdiction of the Collector of Land Customs Delhi and is the area adjoining the West Pakistan frontier for which a Collector of Land Customs has already been ap pointed under section 3
We find no justification for reading into the Schedule any indication of the area where the officers will operate
The Schedule purports to mention the different officers of different districts who arc appointed Land Customs Officers not for those particular Districts but for the entire area
Any other reading of the words used in the main body of the notification would be not only against the plain meaning of the words used but is likely to defeat the object for which Land Customs Officers are appointed
We have therefore come to the conclusion that the construction put by the High Court on the notification is right and Lai Singh being an officer in the District of Barmer which is mentioned in the Schedule was an officer for the entire area which formed the jurisdiction of the Collector of Land Customs Delhi including the place where the seizure was made and was therefore competent to make the seizure
There remains for consideration the last point raised by the learned counsel namely that even if Lal Singh had authority to seize at the place where the seizure was made and section 178 A of the applied the prosecution had still to prove by further evidence that the accused had the mens rea necessary to constitute the offence
Learned counsel rightly pointed that while section 178 A has the result of placing the burden of proof that the gold was not smug gled on the accused it is of no assistance to the prose cution to prove that the accused was carrying the gold 717 knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India
Once however it is found as it must be found in this case in consequence of the provisions of section 178 A the accused has not tried to discharge the burden that lay on him that the gold was not smuggled that he was carrying smuggled gold the circumstances under which the gold was discovered the manner in which he was carrying the gold the considerable quantity of the gold that was being carried and the form in which gold was being carried namely blocks and bars in which the major portion of the gold was found all these circumstances establish beyond a shadow of doubt that accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country
Mr Kapur tried to argue that when gold is carried by persons they often carry it in this manner in a pouli concealed under trousers
That may well be so
Here however there is an additional circumstance that a pointsman of the Railway not expected to have so much gold in his possession was carrying the gold which was as already mentioned in six bloks and 22 bars apart from some small pieces and one pair of murkees
The total quantity was as much as 286 tolas and 11 annas that is about three kilograms
When all these circumstances are taken together it is not possible to accept learned counsel s suggestion that he might be carrying the gold innocently having purchased it from somebody
In our opinion the High Court has rightly held that all the ingredients of the offence under section 16781 of the have been established
It may be mentioned that it has not been disputed before us that if we believe the story of the recovery of the gold from the appellant the circumstances are sufficient to establish that Lal Singh seized the gold in the reasonable belief that these were smuggled goods
In the view we have taken in this matter it is unnecesary to consider the further argument raised by Mr H R Khanna who apperaed for the State that even apart from section 178 A the guilt of accused could be held to be proved by the confession made by him before the Deputy Superintendent Land Customs corroborated as it 718 is by the recovery of the gold from him
All the points raised in the appeal on behalf of the appellant fail and the appeal is accordingly dismissed
Appeal dismissed


Summary:
The appellant was found carrying 286 tolas of gold in running train between Kerla and Pali stations by the Sub Inspector of Barmer District
After the gold was seized criminal proceedings were instituted against the appellant
The trial court acquitted the appellant but the High Court convicted him
The appellant s case in this Court was that the seizure of the gold from him had not been proved that the Sub Inspector was not a Customs Officer for the place where the seizure was made and so the 709 seizure was not under the Land Customs Act and that in any view of the case the prosecution had failed to prove the necessary mens rea in the appellant
Section 3 of the Land Customs Act authorises the Central Government to appoint by notification one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification
The section also authorises the Central Government to appoint such other persons as it thinks fit to be customs officer for the same area by a similar notification
The relevant notification issued was as follows 1
In exercise of the powers conferred by sub section 1 of section 3 of the 19 of 1924 read with the notification of the Government of India in the late Finance Deptt
Central Revenues No 5444 dated 1st December 1924 the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontier separating West Pakistan from India the officers of the Government of Rajasthan specified in the Schedule hereto annexed to be land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi
The Schedule All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer Bikaner Ganganagar Jaisalmer and Jalore in the State of Rajasthan
 Held that the word adjoining in the above notification means the whole compact block consisting of the State of Punjab Jammu and Kashmir and Rajasthan and the Union territories of Himachal Pradesh and Delhi as one area adjoining the West Pakistan Frontier and that for this entire area one person was appointed the Collector of Land Customs
Every officer therefore mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole area which forms the jurisdiction of the Collector of Land Customs Delhi
Since in the instant case the Sub Inspector was an officer mentioned in the Schedule he would be an officer for the entire area which formed the jurisdiction of the Collector of Land Customs Delhi including the place where the seizure was made and was therefore competent to make the seizure
Held further that on the evidence the story of the re covery of gold from the appellant was true and that the circumstances manner quantity and the form in which gold was carried clearly showed that the appellant was smuggling gold knowingly and with the intention of evading the prohibition in force with respect to the import of gold into the country