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ATSISTANT COLLECTOR OF CENTRAL

EXCISE, CALICUT

V.P. SAYED MOHAMMED

January 12, 1983

!E.S. VENKATARAMIAH AND R.B. MISRA, JJ.J

Evidence-Btnefit of doubt to accused-Doubt must be reasonable, real and G substantial arising out of entire evidence •

The respondent was charged under s. 135 (b) of the Customs Act," 1962 read with s. 85 (ii) of the Gold (Control) Act, l 968.

The caso against him was supported inter alia .by the oral evidence of the Inspector who had seized 28 gold bars from him at a railway station, the ticket collector on duty at the time of seizure and the goldsmith who had certified the purity and weight of the gold bars seized. The goldsmith had depused that he could by experience assess the purity of gold by rubbing it on a touchstone. The documentary evidence included a statement mad~ by the respondent before the Customs Superintendent admitting that the gold bars had been seize~ from him and that the same bad not been legally imported. That the respondent had made this statement of admission bad been affirmed by the Inspector in his deposition.

In his examination under s. 342 Cr. P.C., when the rspondent was asked what he had to say regarding the deposition of the Inspector. he stated:

It is true that gold was recovered from my box. It was not mine.

It was handed over to me by the person called Mamrnu asking me to give it in his house. I had no knowledge that it was gold."

The respondent was convicted and sentenced by lhe District. Magistrate.

After his appeal aS; ainst the same was rejected by the Sessions Judge the respondent -filed a revision petition which was allowed by the fiigh Court on the ground that the prosecution had failed to establish that the metallic bars seized from the respondent were gold bars.

The High Court rejected the evidence of the goldsmith on the g'round that he did neither have the tr&, iniog nor the qualification in the art of testing gold and that he had not conducted either the furnance test or the specific gravity test to determ!ne the character of the metallic bars. According to it, the goldsmith bad miserably failed in the witness box to gi've the impression that he was a competent person to certify that what were seized from the respondent were gold bars. The High Court was of tho view that no importance could be given to the respondent's statement of admissiol,1 before the Customs Suprintendent as the san:ie had ~9t b; en put to him under s. 342,

SUPREME COURT RE~RTS (!9C3] 2 s.c.a.

Cr. P.C. and the person who rec9rded it had also not been examined. In so far as the answer given by the respondent to the question put by the court under s. 342, Cr. P.C. the High Court observed that even assuming that it would have some value, the prosecution could not seek to split the same into various parts and rely on what it considered to be advantageous to establish its case.

Allowing the apeeal against ac:i.uittal,

HE~D : The onus of proving]the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be .such as to exclude every reaso11able doubt about the guilt of the accused.

If a reas, Onable doubt arises in the Dlind of the court after taking into consideration the entire material before it regarding the ftcomplicity of the accused the benefit of such doubt should b' given to the accused but the reasonable doubt should be a real and substantial one and a

1well founded actual doubt arising out of the evidence existing after consideration of all the evidence' .

. [230 C-E]

Woodroffe & Ameer Ali's Lav of Evidence, 13th ed. Vol. I, pp. 203-204, referred to.

In the instant case the doubt entertained by the High Court about the nature c1f the metallic bars cannot be considered to be a reasonable doubt.

It is well known that persons who are goldsmiths by profession are able to find out whether a piece of metal is gold or not b1 the colour of the streak produced by rubbing it on a toucb-stone used hy th-em even though their assessment of its purity may not be exact. Further. the respondent did not dispute that gold had been recovered from his box. :Reading bis answer to the question put under s. 342, Cr. P.C. as a whole, it rneans that be knew that when his steel trunk was opened and searched there was gold in it but be bad no knowledge that the packet contained gold when it was banded over to him by Mammu.

The High Court erred in holding that the statement of the respondent that the gold was seized from him could not be used against him on the ground that it would result in the splitting up of tb~ statement which was on the whole exculpatory. [230 H. 231 A-E]

In this case even without the aid or the statement made by the respondent before the Customs Superintendent it is possible _to hold that the metallic bars seized from the respondent were gold bars in view of the evidence of the Inspcictor, the ticket collector and Lhe goldsmith and the statement of the respondent before the Court.

Further, in the circumstances in which the gold bars had bee:n seized from the respondent, the burden of proving that they were not smuggled goods was on respondent undCr s. 123 of the Customs Act. [231 E-G]

CRIMINAL APPELL, l.TE JURISDICTION : Criminal Appeal No. 44 of 1976.

H Appeal by Special leave from. the judgment and order dated the 5th January, 1973 of the KeralajHigh Court in Criminal Revision Petitio.n NQ, 42~ of 1972.

.. l

ASSTT. COLLECTOR v. V.P.S. MOHD. (Venkataramiah, J.) 227

G.S. Narain and Miss A. 'subhashlni for the Appellant.

M.M, Abdul Khader and E.M.S. Anam for the Respondent.

The Judgment of the Court was delivered by

VENKATARAMIAH, J. The Assistant Collector of Central Excise, Calicut has filed this appeal after obtaining the special leave of this Court against the judgment and order dated January 5, 1973 of the High Court of Kerala in Criminal Revision Petition No. 426 of 1972.

Briefly stated, the facts of the case are these : In the early hours of August 9, 1969 the respondent alighted from the Kerala Express at the Trichur Railway Station with a steel trunk in his hand. C.C. Mathan, Inspector of Central Excise Specia11Customs; Preventive, Trichur (P .W. I) who was on patrol duty at the llailway Station suspected that the respondent was carrying contraband goods and on coming to know from the Ticket Examiner that the respondent had arrived from Bombay !he asked the respondent to hand over the steel trunk which he was carrying.

When C.C. Mathan (P.W. I) opened and searched the steel trunk, he found in it 28 gold bars with' foreign markings. The respondent was arrested by C, C, Mathan (P.W. I) and when questioned by P. W. I, the respondent did not produce any authorisation entitling him to keep the 28 gold bars in question which were valued at Rs. 56,030/-. A mahazar (Exb, P.1) was prepared for having seized the 28 gold bars.

A sum of Rs. 1,380/- which was found in the steel trunk was also seized.

Later on, it is stated, that the 28 gold bars in question were confiscated in a proceeding under section ll!(ci) of the Costoms Act, 1962 read with seotion 23-A of the Foreign Exchange. Regulation Act, 1947 before the Additional Collector of Customs, Cochin. The steel trunk also was confiscated under section 119 of the Customs Act, 1962. A penalty of Rs. 500/- was imposed on the respondent under section I 12(b) of the Customs Act, 1962. The amount of Rs. 1380/- which had been seized from the respondent was, however, ordered to be returned to him.

Thereafter the Assistant Collector of Customs and Central Excise, Kozhikode after obtaining the required sanction under section 137(1) of the Customs Act and section 97(1) of the Gold (Control) Act, J 968 from the Additional Collector of Customs, Cochin and the Collector of Customs and Central Excise, Cochi11 respectively ' filed a complaint pfor~ th~ District Magistrate (Judicial),

SUPREME COURT REPORTS

(1983] _2. S.C.R,

Tellicberry against the respondent for offences punishable under section 135(b) of the Customs Act read with section 85(ii) of the Gold (Control) Act, 1968.

In support of the said prosectlon four witnesses were examined by the complainant. C.C. Mathan, P.W.l gave evidence .about tbe seizure of the 28 gold bars with foreign marldngs from the respondent at the Trichur Railway Station on August 9, 1969 under the mahazar (Exh. P.l). He also produced Exh. P.2 which coutained the statement made by the respondent before the Special Customs Preventive Circle Superintendent, Kozhikode in which he had admitted that 28 gold bars with foreign markings had been seized from him under a mahazar and that the said 28 gold bars had not been legally imported to India. C.C. Mathan (P.W. 1) stated that he was present beforo the Special Customs Preventive Circle Sperintendent, Kozhikode when IBxh. P.2 was recorded and that the said statement contained the signatures of the respondent and of the Superintendent who had recorded it. K. Subramonian (P.W. 2) who was working as a Ticket Collector at Trichur Railway Station stated thatthe 28 gold bars in question were seized on. August 9, 1969 at the Trichur Railway Station under the mahazar (Exh. P. I) which he had signed.

V.M. Velayudhan (P.W.3) • who was a resident of Trichur and a goldsmith by profession stakd that the 28 gold bars in question had been examined and weighed by him at the Trichur Railway Station at the request of C.C. Mathan (J>. W. l) . He further stated that he tested the purity of the said 28 gold bars by rubbing them on the touch-stone and found that they were gold bars of 24 carats quality.

He gave a certificate (Exh. P.3) regarding the purity and the weight of the 28 gold bars. V.M. Velayudhan (P. W.3) who was a certified goldsmith further stated that he could by experience assess the purity of gold by rubbing it on a touchstone.

He, however, stated that he had no technical knowledge about gold and he did not know the 'specific gravity' method by which the purity of gold could be determined. The Assistant Collector of Central Excise (P.W.4) was examined to prove the sanctions given by the competent anthorities to file the case. In his examination under section 342 of Criminal Proredure Code i1 answer to the following question put by the Court : 'What have you to say about the deposition of P. W. l that you on 9th August, 1969 at 7 O'clock in the moring alighted from train at Trichur Railway Station wit:h a steel trunk and that P.W.l on searching the box due to suspicion, found out 28 gold bars having foreign marks?' the respondent stated 'It 'is (fue that gold was

ASSTT. , COLLECTOR v. V.P.S. MOHD, (Yenkataramiah, J,) 229

recovered from my box. It was not mine. It was handed over to me by the person called Mammu asking me to give it in his house. I had no knowledge that it was gold.' The learned District. Magistrate found that the prosecution had established that the respondent had committed an offence under section 135(b) of the Customs Act and an offence under section 85 (ii) of the Gold (Control) Act, 1968 and convicted him of those offences. The respondent was sentenced to pay a fine of Rs. 500 /- for the offence under section 135(b) of the Costoms Act and in default of payment of fine to undergo simple imprisonment for six months.

No separate sentence. was, 'however, awarded for the offence under section 85(ii) of the Gold (Control) Act.

The respondent preferred an appeal against the judgment of the learned District Magistrate before the Sessions Judge, Trichur and that appeal was dismissed.

The respondent filed a revision petition before the High Court of Kerala against the decision of the learned Sessions Judge: The learned Judge of the High Court who heard the revision petition allowed it and set aside the conviction of the respondent and the sentence imposed on him on the ground that the prosecution had not established that the metallic bir; which were seized from the respondent under Exh. P.l were gold bars and, therefore, the conviction of the appellant could not be sustained. The learned Judge found that the evidence of V.M. Velayudhan (P.W.3) who was examined in the case, the statement Exb. P.2 made by the respondent before the Special Customs Preventive Circle Snperintendent; Kozhikode and the answer given by the respondent under section 342 of the Criminal Procedure Code taken together were not sufficient to hold that the gold bars had been seized from the respondent nuder Exh.P.t. He rejected the evidence of V.M.

Velayudhan (P.W.3) on the ground that he had not thet raining or the qulification in the art of testing gold and that he had not conducted either the furnace test or the specific gravity test to determine the charactar of the metallic bars. He was of the opinion that V.M. Velayudhan (P.W.3) had miserably failed in the witness box to give the impression that he was a competent person to certify that what were seized from the respondent were gold bars and that in the absence of any training or qualification to the credit of V.M. Velayudhan (P.W.3), it would be unsafe to rely on his evidence and conclude that what was seized from the respondent was gold. So far as Exh. P.2 'was concerned the learned Judge was of the opinion that as the said statement haq not been specifically put to the respondent under section 342 of the Criminal Procedure Code and as the person who had recorded it bad not been

230 SUPRll-ME COURT REPORTS [1983] 2 s.c.R..

examined, no importance could be given to it. In so far as the answer given by the respondent to the question put by the Court under section 342 of the Code _of Criminal Procedure which is set out above is concerned, the learned Judge observed that even assuming that it would have some value the prosecution could not seek to split that statement into various parts and rely on what it considered to be advantageous to establish its case. Accordingly the learned Judge acquitted the accused.

The principal point whkh arises for consideration in this case is whether the prosecution had established thatlsmuggled gold bars had been seized from the respondentlon August 9, 1969 at the Trichur Railway Station under Exh. P.1. It is true that the onus of proving the facts essential to the establishment of the charge against an accused lies upon thu prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused.

An accused cannot be convicted of an offence on the basis of conjectures or suspi1:ions. If a reasonable dout arises in the mind of the Court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should be given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the eviclence'. "Hence a mere whim or a surmise or suspicion furnishes a.n insufficient foundation upon which to raise a reasonable doubt, and so a vague conjecture, whimsical or vague doubt, a capricious and speculative doubt, an arbitrary, imaginary, fanciful, uncertain chimerical, trivial, indefinite or a mere possible doubt is not a reasonable doubt.

Neither is a desire for moe evidence cf guilt, a capricious doubt or misgiving suggested by an ingenious counsel or arising from a merciful disposition or kindly feeling towards a prisoner, or from sympathy for him or his family'' (See Woodrolfe & Ameer Ali's Law of Evidence, 13th Edn. Vol.I pp. 203-204).

On a reading of the evidence of C.C. Mathan (P.W.1), V.M. Velayudhan (P. W.3) a.nd the statement of the respondent under section 342 of the Criminal Procedure Code which is referred to above, we are of the view that the doubt which the learned Judge of the High Court entertained about the nature of the metallic bars which were seized from the respondent under Exh. I cannot be considered to be a reasonble doubt. It is well known that persons who are golds miths by profession a1e able to find out

A '

r '"' ,

Asstt. COLLECTOll. v. v.P.s. MOHD. (i'enkataramiah, J.) 131

whether a piece of metal is gold or not by the colou~ of the streak

produced by rubbing it on a touch-stone used by them even though their assessment of its purity may not be exact. It may not be a scientific way of proving that the metallic bars were gold bars. In the instant case, however, tbe respondent did not dispute that gold had been recovered from his box under Exh. P .l. His plea was that it was true that gold was recovered from liis box but that it did not belong to him; that it had been handed over by a person called Mammu asking him to give it in his house and that he had no knowledge that it was gold when the packet containing it was handed over to him. Reading the answer of the accused as a ' whole it means that he knew that when his steel trunk was opened and searched, there was gold in it but he had no knowledge that the packet contained gold when it was handed over to him by Mammu asking him to hand it over in his house. The answer consists of two parts and they refer to two distinct matters. The first part relates to seizure of gold from him and the latter part relates to what had happened earlier when the packet was handed over to him. The case might haye been different if he had said that no gold was recovered from his box. The High Court, therefore, erred in holding that the statement of the respondent that the gold was seized from him could not be used against him on the ground that it would result in the splitting up of the statement which was on the whole exculpatory. Even without the aid of the statement made by the respondent before the Special Customs Preventive Circle .Superintendent Exh. P.2, it is possible to hold in this case that the metallic bars seized from the respondent under Exh. P.1 were gold bars in view of the evidence of P.Ws. I, 2 and 3 and the statment of the respondent before the Court. The High Court was in error in coming to the conclusion that gold had not been seized from the respondent by P.W.I as per Exh. P.l at the Trichur Railway Station. These gold bars were seized by P.W.1 in the reasonable blief that they were smuggled goods.

Under section 123 of the Customs Act, in such circumstances, the burden of proving that they were not smuggled goods would be on the respondent from whose possession they were seized. In the instant case, the respondent bad not discharged the burden which lay on him. P.W.1 has stated that the said gold bars bad foreign markings on them and Exli. P.I, the mahazar corroborated his statement. The respondent had no authorisation to keep the said gold with him. It is in evidence that the said gold bars were found packed in paper and kept in the inside folds of a blanket underneath

232 sui>lli!ME COURT REPORTS [1983] 2 s.c.a.

• some clothes in the trunk seized from the respondent.

He bad taken care to secrete them. He. had brought them from Bombay which was a customs area. In the circumstances his explanation that be had no knowledge that he was in possession of or carrying smuggled gold bars cannot be believed, as rightly held by the learned Sessions Judge. The prosection bas clarly established the guilt of the respondent. The judgment of the High Court is, therefore, liable to be set aside aC1d it is accordingly set aside. The conviction of the respondent and the sentence imposed on him by the learned District Magistrate which were affirmed on appeal by the learned Sessions Judge are rnstored. The appeal is accordingly allowed.

H.LC.

Appeal allowed.