Assistant Collector of Central Excise, Calicut v. V.P. Sayed Mohammed
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 p~for~ th~ District Magistrate (Judicial),
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228 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 Superin
tendent, 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 touch
stone. 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 i·1
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
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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 Snperin
tendent;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 deter
mine 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
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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 dou~t 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 mo~e 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
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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 b~lief 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
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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 cl~arly 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.
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