Case: Kishan Narain Vs. State Of Maharashtra

1. The appellant was convicted by the Special Judge of Bombay under S. 1 65-A I.P.C. and sentenced to rigorous imprisonment for one year and to pay a fine of Rupees 10.000. On appeal the High Court of Bombay upheld the conviction but reduced the sentence of imprisonment to six months. The appellant is a partner of a firm owning the New India Knitting Mills in Amritsar. It has a sister concern called J. D. Woollen and Silk Mills, which is owned by a partnership firm of which the appellants minor son is a partner. On 10-10-1963 the J. D. Mills was given an import licence for Rs. 23,480/- for spare parts for Warp Knitting Machine from Germany. Towards a part of that import licence goods valued at Rupees 11.699/- arrived in Bombay on 16-3-1964. The J. D. Mills arranged for clearance of this consignment by the New Suraj Transit Company having its head office in Amritsar and a branch in Bombay. One Hiro Shahani, who became an approver in this case, was an employee of the clearing agents. Bakubhai Ambalal and Co. were the representatives in India of the machinery manufacturing company2. It appears that in July 1963 there was an anonymous petition against the two mills and on 21-11-1963 an order was made by the Principal Appraiser of the Special Investigation Branch of the Customs that a careful watch should be kept over the imports by the two mills. On 30-3-1964 the J. D. Mills had made a representation to the Deputy Collector incharge of the Appraising Department in the Customs House at Bombay complaining against long delays in clearing their imports and thereafter the appellant also seems to have met the Deputy Collector, Customs and protested against excessive scrutiny. The Deputy Collector ordered the matter to be examined and if there was no substance in the complaint against the mills to consider reviving normal examination. By that time the consignment already referred to had arrived. The Bill of Entry in respect of this consignment was prepared on 4-6-1964. The Import Branch sent it to the Special Investigation Branch and that Branch sent it back to the Import Branch. The consignment was examined by one Motwani, who was later examined as P.W. 6 in the case. He was of opinion that the goods were not spare parts but that it was a machine in assembled condition. The Shed Appraiser agreed with this view. The clearing agents thereupon telephoned to the appellant who asked them to make a request for re-examination as provided under the rules, Shahani, the approver, thereupon requested the Principal Appraiser, Almeida, for re-examination. Almedia made an order for scrutiny by the scrutinizing appraiser and the shed appraiser. One Vazirani, scrutinising appraiser, made a re-examination accordingly and made a report, which was approved by the shed appraiser, Menon. This went to the scrutinising appraiser, Merchant, who in his turn examined it in the presence of Shahani and Majumdar, the engineer of Bakubhai Ambalal, and recommended issue of show cause notice for misdeclaration. Almeida approved of it on 9-7-1964 and on 17-7-1964 a notice was accordingly issued by Almaida3. On 1-7-1964 the appellant reached Bombay. Towards the end of that month the Central Intelligence Unit was constituted in the Customs Department and it was to function as the vigilance party of that department. P.W. 3, Ramachandra Rao, was one of the appraisers transferred to this unit. He inspected the goods on 1-8-1964. On 4-8-1964 he was directed by the Assistant Collector in-charge. Sonavne to execute warrants of search against Bakubhai Ambalal, who however produced the documents asked for4. The appellant asked Shahani on the 4th to introduce him to Rao. That was not done. On 13-8-1964 the appellant met Rao at Gaylord restaurant where Rao had gone to meet one of his contact men. At that time the appellant is alleged to have made an offer of a bribe of Rupees 5000/-to Rao. Rao told him that he would let him know and later asked Shahani to ask the appellant to meet him at the same place the next day. He duly reported the offer of bribe to his Assistant Collector Sonavne at 1.30 p.m. The latter took some time to consider the matter and in the evening told Rao that it had been decided to take up the matter with the Special Police Establishment. So on 14-8-l964 Rao went to the S.P.E. Office and was directed to see Mr. Jog, Dy Superintendent of Police in-charge of S.P.E., Bombay who recorded his complaint. Jog took with him to Gaylord two officers of the Income-tax Department, P.W. 4, an Assistant Commissioner of Income-tax and P.W. 5, an Income-tax Officer who later became panchnama witnesses. They were directed to remain close to Rao and to overhear the conversation between him and the appellant. In due course the appellant and Shahani came there. About what happened then we shall refer to in detail a little later. It is sufficient at this stage to say that the appellant passed on two envelopes to Rao and at that moment Jog appeared on the scene and recovered both the envelopes from Rao. The envelopes were found to contain Rs. 2,500/- each. The investigation was carried out and a charge-sheet filed on 30-10-1964. Shahani was arrested on 24-11-1964 and was released on bail. His statement was recorded in January 1965 by police and his confession statement before the Magistrate was recorded on 19-3-1965. On 15-4-1965 an application was made to grant him pardon in order to treat him as an approver and an order was passed in due course. The case was in due course tried and the appellant was convicted as mentioned earlier5. It appears that on 21-5-1965 Shahani made an application to Customs Department for reward for passing on certain information to that department and on 7-6-1965 he received 3 sums of Rs. 500, Rs. 500 and Rupees 350 as part payment of reward. It also appears that Shahani had made an application for licence to work as clearing agent. Somehow the appellant had got information about these facts as also the noting made by Rao on the application for reward made by Shahani. These facts were denied by both Rao and Shahani in their evidence. Shahani was examined from 15th to 20th of September, 1965 and on the 20th an application was made on behalf of the appellant for production of 3 documents (i) the application of Shahani dated 21-5-1965 asking for reward, (ii) three receipts signed by him in respect of amounts, about which mention has already been made, and (iii) the Central Intelligence Unit file, of which even the number was given. The Assistant Collector of Customs filed a reply to this application stating that he could not be compelled to say or divulge any information as to the commission of any offence against the public revenue. He also stated that all the documents were made in official confidence and public interest would suffer from disclosure of any of the documents on the file. Another application to the same effect was made on 22-9-1965. Both the applications were dismissed by the Special Judge. Before the High Court, when the appellants appeal was pending, an application was made on 11-6-1968 by the appellant for summoning the very same three documents for producing which he had applied before the trial court and the High Court passed an order on 5-7-1968 bringing on record certain portions from the file of the Central Intelligence Unit, which is found at pages 453 and 454 of the paper book as Exs. 67 and 68. Consequently, Shahani and Rao were directed to be further examined and they were accordingly further examined before the Special Judge. There was again another application before the High Court on behalf of the appellant in respect of certain questions put to Rao in the course of this examination, which was dismissed by the High Court on 3-3-1969. That need not detain us.

Reasoning:
We are of opinion that the High Court has not been quite fair to Rao. In regard to Shahanis application for reward and his own dealings with the connected file Rao was really on the horns of a dilemma. As pointed out by the Assistant Collector, Beri, in his reply affidavit to the appellants application for the production of the three documents which he wanted, Rao could not be compelled to answer questions without breach of the provisions of Sections 124 and 125 of the Evidence Act. We are of opinion that the order of the learned Judge of the High Court permitting certain portions of the C.I.U. file to be brought on record was not correct. The learned Judge seems to have been more concerned with the provisions of Section 125 than with Section 124 of the Evidence Act. While the portions brought on record might not contravene the provisions of Section 125 we have no doubt that it contravenes Sec. 124. The noting made by Rao on the C.I.U. file was one made by him in official confidence. This was not seriously disputed by Mr. Sibal appearing for the appellant before usEven taking those conclusions into account we do not consider that the prosecution case in respect of the central point has in any way been shaken. The learned Judge of the High Court himself did not find Rao to be wholly unreliable and he did not consider that his evidence could be altogether discarded. We are satisfied on the evidence that the Courts below were right in coming to conclusion that the appellant did meet Rao at Gaylord on the 13th. As we have already mentioned the appellant had immediately reported the matter to Assistant Collector, Sonavne and on the instructions of his higher authorities a complaint was made to the Special Police Establishment. We are not able to accept the argument on behalf of the appellant that there was no such meeting, that it was Shahani that had arranged for the appellants meeting with Rao at Gaylord on the 14th and that it was Shahani who had arranged to see that the two envelopes which the appellant handed over to Rao contained not the documents relating to the two further consignments but currency notes. That the appellant should have been anxious to be on the right side of somebody in the Customs Department was natural enough. The reason is this: All the appraisers who had looked into the consignment received by the J. D. Mills had taken the view that what was imported was not spare parts though it was argued on behalf of the appellant that the various spare parts had been put together in order that they might be transported safely and what was imported was not a whole machine. It may well be that what was imported was not a whole machine as held by the Collector of Customs ultimately in 1968. But the spare parts were in an assembled condition and even Majumdar, the Engineer of Bakubhai Ambalal got the first impression that it was nearly a machine. He could not say what parts were not there. The appellant himself in the statement filed before the trial court has stated that in view of the fact that the spare parts which were imported were in an assembled condition for the purpose of safe transportation without avoidable damage, the Customs examiners and appraisers got the first impression that what was imported was a machine and not spare parts. It was, therefore, not surprising that all the appraisers who viewed the machine proceeded on the basis that what was imported was not spare parts. Even according to the appellant, he had asked Shahani to introduce him to Rao. Quite possibly Shahani might have told the appellant that Rao was expected to be in the Gaylord on the 13th at 12.30 p.m. We are proceeding on the basis that Shahanis evidence is wholly unreliable. But as we said earlier, Rao could not have complained to Sonavne at 1.30 p.m. soon after he alleges he had met the appellant at Gaylord at 12.30 p.m. and the appellant had made the offer of bribe, nor gone on further to make a complaint to the Special Police Establishment if he had not met the appellant on the 13th. He could not have done all that merely on Shahanis information that the appellant would meet him (Rao) on the 14th at Gaylord. Nor could it be expected that either Shahani or Rao would have found Rs. 5,000/- merely to trap the appellant and risk that amount. There is no strong enough motive for either Shahani or Rao to implicate the appellant falsely. We are satisfied that the evidence of Rao as to what happened on the 13th is true and reliableA clever attempt has been made to make it appear that Shahani went out and brought in two envelopes containing currency notes instead of the papers relating to two consignments that appellant expected Shahani to bring. Not being in a position to question the integrity of PWs 4 and 5 or the truth of their evidence an attempt has been made on behalf of the appellant to sail as close as possible to their evidence and to give just a simple twist to make it appear that the appellant was innocent. In addition to the fact that the appellants reaction was not that of an innocent man falsely accused of giving a bribe we do not believe, as we said earlier, that Rao had sufficient motive to trap the appellant by either himself producing the money or to get it from any of the appellants enemies. We are not able to find any reason to be lieve that anybody had sufficient enmity with appellant to try to falsely foist a case against him and risk Rs. 5000/- in the process. We are satisfied that the conclusion arrived at by both the courts below about the appellants guilt is correct and it has been established beyond all reasonable doubt11. The only question that remains is the question of sentence. The learned Judge of the High Court has reduced the sentence of one years imprisonment awarded by the Special Judge to one of six months on the ground that the appellant paid the bribe only in order to avoid harassment.Even if we accept this conclusion we do not consider that the imprisonment should be reduced below six months to which he reduced it. But we are of opinion that there was no harassment as the facts set out earlier would amply bear out. Nor can we agree with the argument advanced on behalf of the appellant that Raos evidence to the effect that the appellant asked him whether he would be ready to accept money after the consignment was cleared shows that he had reconsidered his decision of bribing Rao and wanted to turn over a new leaf. What the appellant was trying to do was really to try to have the cake and eat it too.We do not consider that this is a case like the one in Ramjanam Singh v. State of Bihar, AIR 1956 SC 643   of a person who had decided finally and firmly not to bribe and where it could be said that he was deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law by those who were the guardians and keepers of the law.