JAMATRAJ KEWALJI GOVANI versus THE STATE OF MAHARASHTRA

Citation: [1967] 3 S.C.R. 415 · Decided: 04-04-1967 · Supreme Court of India · Bench: M. HIDAYATULLAH · Disposal: Dismissed

Cited by 6 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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B 
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H 
JAMATRAJ KEWALJI GOVANI 
v. 
THE STATE OF MAHARASHTRA 
· April 4, 1967 
[M, HIDAYATULLAH, s. M. Snau AND c. A. VAIDIALINGAM, JJ.J 
.Criminal Procedure Code, 1898, 
s. 540-wltness called by court at 
imtance of prosecution after defence case closed-witness deposing to 
reasonable belief necessary under s. 123, Customs Act, 1962, for offence 
under s. 135 that goods were smuggled-whether calling such witness at 
that stage permissible-whether essential for just decision in the case. 
Upon a .warrant issued under s. 105 of the Customs Act, 1962, the 
appellant&' shop was searched and a number of watches, clocks, etc., 
were seized. 
As he could not prove that the 
goods had borne the 
necessary 
customs duty, the appellant was prosecuted on two counts 
under ss. 135(a) and 
135(b) 
of 
the 
Customs 
Act, 
1962. Tho 
appellant did not leod any evidence in his own behalf. 
He filed a 
Written statement in which he claimed, inter alla, that no offence had 
been disclosed against him as under 1, 123 of the Act the burden 
would have been on him to prove that the1 aoods had been customed 
provided the aood• bad been aelzed under the Act In the reasonable 
belief that they were 1mugled aood1 but 110 witness bad depo1ed to 
1uch belief. The day after thl1 statement was !lied, 
the pr01ecutlon 
applied for the e11mlnaUon of the Customs Ofllcer who waa In charge 
of the aearob u a court wltne11 In the Interest of justice. 
Although 
tbl1 application was opposed by the appellant, the Magistrate ordered the 
examination of the olllcer under s. 540 of the Code in tho cour1e of 
which be stated that he bad seized tho watchea in the reasonable belief 
that they were smuggled. The appellant was. thereafter examined again 
and was given an opportunity to lead defence evidence but he stated that 
be had nothing further to add and no evidence to lead. The trial court 
then convinced the appellant under Sections !35(a) 
and 13S(b), An 
appeal to the High Court against this conviction was dismissed. 
In the appeal to this Court by spel'ial leave, the question for deter· 
minatlon was whether the evidence of the otllcer was improperly 
nceived by the Magi1trate and whether if excluded tlie conviction of 
Ibo appellant could be supported. 
It was contended on beb'alf ot the appellant that the powers under 
1. 540, hoWt!Ver wide, mull be reconciled- with the mandatory require-
ments of Chapter 21 laylna down the J)fOCedure of trial of warrant 
Cl* by Maai1trate1 and that as the trial had aone throuab the varloua 
1tapa and had reached the 1tapa of 1. 258, the court could either acquit or 
oonvlot him; It w11 therefore 1ubmltted that the Matlatrate bad really al· 
lowtd the pl'OllCluUon to flll a pp In the cue wblcb bad the elect of 
dl1Mn1in1 With the burden which was 011 tbe proaecutlon to prove the ca1e 
under u. 135(a) 
and (b) of the Cuatomt Act and of placing the 
burden upon the appellant to rebut the presumption that the goods were 
amugled; 
HELD : Dismissing the appeal, 
The contention that Chapter 21 must limit the powers under Section 
S40 must be rejected. Offences under the Code of Criminal Procedure are 
416 
SUPREME COURT REPORTS 
(1967) 3 S.C.R. 
tried in different ways according to their gravity. The trials in the Magis· 
trate's courts, the High Courts and Courts of Session as well as summary 
trials have their procedure laid down from one step to another till the state 
is reached for acquittal or conviction. If the argument advanced on the 
basis of the procedure laid down in Chapter 21 was 1X> be accepted, there 
would be no room for the exercises of the power under s. 540 because it 
would always be impossible to fit it into any chapter without doing 
violence to the sequence established there. [419H-420B) 
In the present case the trial Judge appeared to have exercised power 
conferred on him under the second part of section 540 I.e., to admit the 
evidence of the officer as essential to the just decision of the case. As the 
Section stands, there is no limitation on the power of the court arisin,1 
from the stage to which the trial may have reached provided the court 11 
bona fide of the opinion that for the just decision of the case steps autho· 
rised by the Seetion may be taken. [420D·El 
It was obvious that a just decision in the present case required findine 
whether the watches, etc., seized were smuggled or not. The circumstances 
already on record clearly established that some one mmt have s

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