Criminal Appeals Nos 48 and 80 of 1960
Appeals by special leave from the judgment and orders dated December 11 1959 and March 2 1960 of the Bombay High Court Rajkot Now Gujarat High Court In criminal Revision Application No 100 of 1959
855 NN Keswani for the appellants in both the appeals
DR Prom and RN Sachthey for the respondent in both the appeals
The Judgment of the Court was delivered by Wanchoo J
The two appeals by special leave arise out of the same criminal trial before a magistrate at Porbunder and will be dealt with together
The three appellants along with one more person namely Keshavlal Nagjibhai were prosecuted under section 167 81 of the  No 8 of 1878 hereinafter referred to as the Act
The prosecution case briefly was that Vallabhdas Liladhar who is now dead came in contact with an Arab from whom he purchased smuggled gold weighing a little more than 84 tolas on December 1 1956
Before this Vallabhdas Liladhar had borrowed Rs 3600 from the other two appellants and Keshavlal about November 28 1956 in order to make the purchase
After making the purchase Vallabhdas Liladhar came to Porbunder to the house of the other two appellants and Keshavlal and informed them of the purchase and wanted their help in the disposal of the gold
The other two appellants namely Narandas Nagjibhai and Vallabhdas Nagjibhai are brothers
Keshavlal was also the brother of these two appellants
The prosecution case further was that Narandas Nagjibhai asked Vallabhdas Nagjibhai to take the gold to Bantwa and sell it at the rate of Rs 103 or so per tola
Vallabhdas Nagjibhai was also instructed that in case he could not sell the gold at that rate he should contact Vallabhdas Liladhar and Narandas Nagjibhai at Bantwa bus stand from where they were to go to Junagadh to dispose of the gold if no suitable buyer could be found in Bantwa
Consequently Vallabhdas Nagjibhai proceeded to Bantwa by bus on December 2 1956 in the afternoon
In the meantime information was received by Mehta who was Inspector of Customs about the smuggling of this gold
He consequently followed the bus in which Vallabhdas Nagjibhai was travelling and intercepted him at Kutiyana bus stand at about 3 pm
The Deputy Superintendent of Customs was also with Inspector Mehta and Vallabhdas Nagjibhai was taken down from the bus at Kutiyana
On search in the presence of witnesses five bars of gold weighing about 84 tolas were recovered from his possession
All these five bars bore marks of foreign origin and were taken in possession by the customs authorities after preparing a recovery list
Further investigation was made in the matter and eventually on October 7 1957 the Collector of Central Excise Baroda confiscated the gold bars under section 167 8 of the Act read with section 23 of the Foreign Exchange Regulation Act 1947 and also imposed a penalty of Rs 1000 each on the three appellants and a penalty of Rs 500 on Keshavlal
Thereafter a complaint was filed by the Assistant Collector of Customs under section 16781 of the Act before the magistrate at Porbunder on June 27
856 The case of Vallabhdas Liladhar was that he had not purchased the gold from any Arab but had brought it with him from Karachi in the year 1946
Vallabhdas Nagjibhai admitted the recovery of gold from him but said that it belonged to Vallabhdas Liladhar and he was carrying it at the request of the latter and that he did not know that it was smuggled gold
Narandas Nagjibhai also admitted that Vallabhdas Liladhar had come to their house with the gold but added that it was not smuggled gold and that Vallabhdas Liladhar had told him that it belonged to him and was for sale
Keshavlal the fourth person who has been acquitted said that he did not know anything about the matter and had no connection with it
It may be added that the three appellants had made statements before the customs authorities and those statements were also put in evidence in support of the prosecution case
In those statements they practically admitted the prosecution case that the gold was smuggled gold and they were trying to dispose it of
The magistrate convicted all the four persons under section 167 81 of the Act and sentenced them to rigorous imprisonment for six months and a fine of Rs 500 He relied on the statements made by the appellants and Keshavlal before the customs authorities and also on the evidence produced before him which was mainly about the recovery of gold
All the four convicted persons appealed to the Sessions Judge
The appeal was heard by the Additional Sessions Judge Porbunder who acquitted Keshavlal
The appeal of the other three namely the three appellants now before us was dismissed and their convictions and sentences Were upheld
The three appellants then went in revision to the High Court
The High Court rejected the revisions of Vallabhdas Liladhar and Vallabhdas Nagjibhai summarily
The revision application of Narandas Nagjibhai was admitted but was eventually dismissed
The three appellants then applied for leave to appeal to this Court which was refused
They then prayed for special leave from this Court which was granted and that is how the matter has come up before us
Vallabhdas Liladhar one of the appellants in Cr
A 48 of 1960 is dead
So far therefore as he is concerned his appeal abates
It only remains to consider the appeal of Vallabhdas Nagjibhai CrA48 and Narandas Nagjibhai CrA80
Before however we consider the points raised before us on behalf of the appellants we may refer to the circumstances which have been found established by all the courts and on the basis of which the conviction of the appellants has been upheld
These circumstances are 1 Though the price of gold at the relevant time was over Rs 105 per tola the appellant were intending to sell these gold bars at a lower price of about Rs 103 per tola
857 2 The two appellants were working as goldsmiths at Porbunder and there was no reason why the gold had to be sent elsewhere for disposal
As Porbunder is a fairly large town there was no reason why the gold could not be sold in the market at Porbunder
3 The two appellants displayed undue haste in the disposal of gold
4 The surreptitious manner in which the gold bars were kept by Vallabhdas Nagjibhai as shown at the time of recovery shows that the appellants knew that they were dealing with smuggled gold
5 The amount of Rs 3600 was advanced to Vallabhdas Liladhar but the entries in the account book of the appellants were made in the name of the brother of Vallabhdas Liladhar who is the brother in law of the two appellants
6 The markings on the gold made it quite clear that it was of foreign origin and the two appellants could not be unaware of this particularly as they work as goldsmiths
In addition to the above circumstances all the courts relied on the statements made by the two appellants before the customs authorities and the presumption under section 178 A of the Act was raised and on that basis convicted the appellants though the High Court held that even without the presumption under section 178 A the evidence was sufficient to convict the appellants
Learned counsel for the appellants has very properly not challenged the concurrent findings of fact by all the courts
He has raised four points for our consideration which are these 1 The statements made to the customs authorities were inadmissible in evidence as they were not properly proved
2 The statement made before the Collector of Customs were inadmissible in evidence under sections 24 and 25 of the Indian Evidence Act
3 As the gold had already been confiscated and penalty had been imposed under section 1678 of the Act there could be no further trial in a criminal court in view of section 186 of the Act
4 The ingredients of section 16781 are not satisfied in this case
858 Re
So far as the first point is concerned the only argument is that the lawyer who signed the statements made before the customs authorities was not produced to prove them and therefore the statements cannot be held to have been properly proved
It is however clear that the statements were not only signed by the lawyer of the appellants but also by the appellants
In their statements in court the appellants admitted that they had signed the statements though they said
that they did not know what the statements contained and they signed it on being asked by their lawyer
This part of the statements of the appellants has not been believed by the courts below and in our opinion rightly
As the statements bore the signature of the appellants which are admitted they must be held to be proved by this admission and it was not further necessary to examine the lawyer who signed the statements along with the appellants
The contention on this head must there fore fail
As to the second point we are of opinion that section 25 of the Indian Evidence Act has no application on the facts of the present case which are on all fours with the facts in The State of Punjab vs Barkat Ram1
In similar circumstances it was held by this Court in that case that customs officers are not police officers and statements made to them were not inadmissible under section 25
Section 24 would however apply for customs authorities must be taken to be persons in authority and statements would be inadmissible in a criminal trial if it is proved that they were caused by inducement threat or promise
But the finding of all the courts is that the statements were not made on account of any inducement threat or promise as required by section 24 of the Indian Evidence Act
In the face of this finding therefore it cannot be said that the statements are inadmissible under section 24 of the Indian Evidence Act
Next the appellants rely on section 186 of the Act
which reads as follows The award of any confiscation penalty or increased rate of duty under this Act by an officer of Customs shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law
 It is urged that when section 186 lays down that the award of any confiscation penalty or increased rate of duty under the shall not prevent the infliction of any punishment to which the person affected thereby is liable under any other law it necessarily forbids by implication infliction of any punishment to which 1  859 the person affected thereby is liable under the itself
In this connection our attention is drawn to certain observations in Leo Roy Frey vs The Superintendent District Jail1
It is true that in that case this Court referred to section 186 of the Act but that case was not directly concerned with the question whether a prosecution under section 16781 of the Act is permissible after the award of confiscation penalty or increased rate of duty under section 1678 of the Act in view of section 186
Clause 81 in section 167 was introduced by the Amending Act No 21 of 1955
Before that there were 80 clauses in the section and the scheme of those clauses was that a person could either be dealt with by the award of confiscation penalty or increased rate of duty or by a prosecution before a magistrate
It was in those circumstances that section 186 provided that the award of confiscation penalty or increased rate of duty would not bar infliction of any other punishment under any other law
The intention of the legislature by this provision in section 186 was clearly to allow a prosecution under any other law even though there might be award of confiscation penalty or increased rate of duty under the Act
Section 186 was thus meant for permitting prosecutions in addition to action under the Act in the shape of confiscation penalty or increased rate of duty it was never intended to act as a bar to any prosecution that might be permissible after the award of confiscation penalty or increased rate of duty
It was merely an enabling section and not a barring section and seems to have been put in the Act ex abundanti cautela
When however cl
81 was introduced in section 167 it became possible in some cases where goods had been confiscated and penalty inflicted under the Act by the customs authorities to prosecute persons also under cl
81 of the Act
That however would not change the nature of the provision contained in section 186 which was an enabling provision and not a barring provision
If the intention was to bar prosecutions in consequence of the award confiscation penalty or increased rate of duty the words of section 186 would have been very different
We cannot therefore read in section 186 a bar by implication to a prosecution under the Act simply because section 186 enables prosecution under any other law
In this view of the matter section 186 is no bar to the prosecution for an offence under the Act in connection with a matter in which the award of confiscation penalty or increased rate of duty has been made
Next it is contended that the ingredients of cl
81 of section 167 are not satisfied inasmuch as it is not proved that the intention of the appellants was to defraud the government of any duty payable on the gold which was the subject matter of the charge in this case or to evade any prohibition or restriction for the time 1   827 860 being in force
It is true that before cl
81 can apply it has to be proved inter alia that the person charged thereunder with possession of any dutiable or prohibited or restricted goods or concerned in carrying removing depositing keeping or concealing such goods has the intention of defrauding the government of any duty payable thereon or of evading any prohibition or restriction thereon for the time being in force
So it is said that the prosecution has failed to prove by positive evidence that the intention was to defraud the government of the duty payable on the gold in this case or to evade the prohibition or restriction on the import thereon for the time being in force
We have not been able to understand this argument at all
Once it is proved that the gold is smuggled gold it follows that it was brought into the country without payment of duty or in violation of the prohibition or restriction in force
and whosoever brought it and whosoever dealt with it thereafter knowing it to be smuggled in the manner provided in the section must be held to have the intention of evading the payment of duty or violating the prohibition or restriction
There is no force in this contention also
Lastly it is urged that the substantive sentence of imprisonment in the case of the two appellants before us may be reduced to the period already undergone particularly as the appellants have been on bail since March 1960 and it would not be in the interest of justice to send them back to jail for a short period after four years when about half the sentence has already been served out
We however see no reason to interfere with the sentence in cases of this nature
The appeals therefore fail and are hereby dismissed
Appeal dismissed


Summary:
Smuggled gold recovered from the appellants was confiscated and a penalty imposed on them
Thereafter the appellants were tried and convicted under section 16781 of the Sea  Customs Act
In their statements made to the customs authorities the appellants had practically admitted the prosecution case and these statements were put in evidence
An appeal to the Sessions Judge and a revision to the High Court were dismissed
In appeal to this Court HELD iSince the statements made to the customs authorities bore the signature of the appellants which were admitted they must be taken to be proved by such admission and no further evidence was necessary
858C ii Customs officers are not in the circumstances arising in this case police officers and statements made to them were not inadmissible under section 25 of the Evidence Act
Section 24 would apply as customs authorities are persons in authority and such statements would be inadmissible if vitiated by inducement threat or promise
858E F State of Punjab vs Barkat Ram   followed
iii Section 186 of the  which is merely an enabling section is no bar to a prosecution for an offence under the Act in connection with a matter in which the award of confiscation penalty or increased rate of duty has been made
859F G Leo Ray Frey vs Superintendent of District Jail   referred to
iv Once the gold recovered is proved to be smuggled whosoever is found to have brought it and dealt with it thereafter knowing it to be smuggled must be held to have had the intention of evading duty or violating the prohibition or restriction
860C D