JETHAMAL PITHAJI versus THE ASSISTANT COLLECTOR OF CUSTOMS BOMBAY AND ANR.

Citation: [1974] 1 S.C.R. 645 · Decided: 10-09-1973 · Supreme Court of India · Bench: HANS RAJ KHANNA · Disposal: Dismissed

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Judgment (excerpt)

A 
8 
c 
D 
E 
G 
H 
JETIIAMAL PITHAJI 
v. 
THE ASSISTANT COLLECTOR OF CUSTOMS 
BOMBAY AND ANR. 
September 10, 1973 
[H. R. KHANNA AND A .. ALAGIRISWAMI, JJ.] 
645 
Sea Customs 4ct (8 of 1878), s. 167(81)-l'tatement to customs officer 
contai11i11g inculpatory and exculpator:y statements-If inculpatory porrion can 
be relied on for con1'iction. 
The appellant, a goldsmith, was convicted 
under s. 
167(81) of the Sea 
Customs Act, 1878, in that he was in possession of gold bars with foreign 
markings. The evidence aga~nst him consisted of his statement recorded by the 
customs officer and the evidence of the sub-inspector of police who seized the 
gold bars from him. 
Jn his sta!ement to the customs 
officer the 
appellant 
stated that he was duped by another who left the bag with him and that it was 
only when he took the bag to his room that he discovered that it contained bars 
of g'Jld, and that the bag was found in his room. 
The Magistrate framed the charge against the accused after cxamini.ng the 
cus~oms officer and the sub_·ir~spec'.or. The sub-inspector 
was 
also 
cross-
examined after the charge was fran;i.ed; but when he was 
called for further 
custorr1S officer and the sub-inspector. 
The 
sub-inspector was 
also 
cross-
golr! bars were found in the room but that the accused was not present when 
they were seized. 
The trial court found that the statement of the police officer made in further 
cross exa1nination after framing the charge was untrue and 
relying 
on 
the 
evidence given by him earlier convicted the appellant. 
The High Court, in 
maint'-.ining the conviction, also relied upon the statement of the <lppellant to 
the customs_ officer. 
·oismissing the appeal to this Court. 
HELD : (I ) If the Court. finds the exculpatory part of the statement ·Of 
the accused to be inherently improbable, there is no reason why the other part 
of the statement which implicates the accused and which the court sees 
no 
rCason to disbelieve should not be accepted. In the present case _the inculpatory 
part of statement of the accused to the Cl,lStoms officer is distinct and severable 
from the exculpatory part. It is very difficult to believe the version of the 
accused that he was duped and the remaining part of the statement 
clearly 
implicates him. [647H; 648G-H; 649A-B] 
Nisl1i Kant Jha v. State of Bih<r, [1969] 2 S.C.R. 1033, followed. 
(2) As regards the evidence of _the sub-inspector there is no cogent reason 
for disbelixing 'his earlier version. 
He changed his version to spite the prose-
cution because, after his earlier version and before he was called for further 
cross-examination, he was compulsorily retired as a measure of punishm~nt. 
[647 D-E] 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
48 
of 1970. 
Appeal by special leave from the judgment and order dated 16th 
January, 1970 of the Bombay High Court in Criminal Appeal No. 694 
of 1968. 
S. V. Gupte and R. B. Dattar, for t~ appellant. 
Gobind Das and S. P. Nayar, for respondent No. I. 
646 
SUPREME COURT REPORTS 
[197-"· l 1 s.c.R. 
B. N. Lokur and S. P. Nay(lf, for respondent No. 2. 
The Judgment of the Court was delivered by 
KJIANNA, J .-This appeal by special leave is against the judgment 
of the Bombay High Court affirming on appeal the conviction of the 
appellant under section 167(81) of the Sea Customs Act and the 
A 
sentence of rigorous· imprisonment for two years. 
B 
The prosecution case is that on August 17, 1961 Sub Inspector 
Sahani of the Railway Preventive Section, on receipt of ~ome info_r-
mation, went to room No. 2 on the second floor of Bon C)iawl m 
the 13th lane, Kamathipura, Bombay. 
The accused was found pre-
sent there, holding a bag. 
The said bag was taken into possession 
by the Sub Inspector and was found to COiltain 25 bars of gold, 
weighing ten tolas each, of the value of Rs. 78,400/. The bars had 
C 
foreign markings. The Sub Inspector arrested the accused for an 
offence under section 124 of the Bombay Police Act. As the articles 
recovered from the accused consisted of gold bars with foreign mark-
ings, the matter was entrusted to the Customs Officer H. C. Advani 
(PW 2). The gold bars too were handed over to Advani. 
Advani 
recorded statement Ex. A of the accused. A complaint was there-
after filed against the accused by the Assistant Collector of Customs 
D 
on the allegation that the accused had committed an offence under 
section 167(81) of the Sea Customs Act. 
The accused in his statemen

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