STATE OF GUJARAT versus MOHANLAL JITAMALJI PORWAL & ANR.

Citation: [1987] 2 S.C.R. 677 · Decided: 26-03-1987 · Supreme Court of India · Bench: M.P. THAKKAR · Disposal: Appeal(s) allowed

Cited by 4 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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STATE OF GUJARAT 
v. 
MOHANLAL JITAMALJl 
PORW AL & ANR. 
MARCH 26, 1987 
[M.P. THAKKAR AND S. NATARAJAN, JJ.] 
Customs Act, 1962: s. 123 and s. 135( 1) read with s. 111-
Presumption that goods seized were smuggled goods-When to be 
raised-' Reasonable belief-Connotation of. 
Code of Criminal Procedure, 1973: s. 391-Additional evidence 
to prove a document-Admissibility of-Lapse of six years-Whether 
material. 
Practice & Procedure 
) 
Criminal Trial-Economic offences-Cause of the community-
Courts to give equal treatment. 
The respondent accused, a rail passenger, was found by the 
Customs Officer wearing a waistchain weighing 820 gms., made of pure 
gold and coated with mercury so as to give an appearance of being made 
of silver. The goldsmith who was summoned to the railway station to 
test the article on the spot certified that it was made of pure gold. The 
article was seized and he was charged for offences under s. 85 of the 
Gold (Control) Act, 1968 and s. 135(1) read withs. 111 of the Customs 
Act, 1962. The trial court held that what was seized was an 'ornament' 
and not 'primary gold' and acquitted the accused respondent of the 
charge under s. 85 of the Gold (Control) Act. Disregarding the evidence 
of the goldsmith it took the view that the presumption under s. 123 of 
A 
B 
c 
D 
E 
F 
the Customs Act could not be raised as the Customs official who had 
made the seizure could not have entertained a reasonable belief that the 
article in question was made of smuggled gold. It also found fault in G 
regard to the proof of report of the Mint Master that the article in 
question was made of pure gold of the specified fineness. 
The High Court confirmed the acquittal and rejected the request 
made by the prosecution for adducing additional evidence under s. 391 
of the Code of Criminal Procedure in order to remove the alleged H 
formal defect in the proof of the Mint Master. 
677 
678 
SUPREME COURT REPORTS 
(1987] 2 S.C.R. 
A 
Allowing the appeal by the State, the Court, 
B 
HELD: 1.1 The view taken by the High Court that the presump· 
lion under s. 123 of the Customs Act that the seized article was smug-
gled gold could not be raised was altogether unreasonable and cannot 
be sustained. [681E·Fi 
1.2 Whether or not the official concerned had seized the article in 
the "reasonable belier' that the goods were smuggled goods was not a 
question on which the Court could sit in appeal. 1f prima facie there 
were grounds to justify the belief the Courts have to accept the officer's 
belief regardless of the fact whether the Court of its own might or might 
C 
not have entertained the same belief. Section 123 of the Customs Act 
does not admit of any other construction. [682A·C] 
Pukhran v. D.R. Kholi, [1962] 3 Supp. S.C.R. 866, applied. 
' 
1.3. In the instant case, the conduct of respondent No. 1 in coat· 
D ing the article of pure gold with mercury to make it appear as if it was of 
silver was itself a conduct which could have provided the basis for 
entertaining a reasonable belief that the article was a smuggled article. 
This was an extremely unusual circumstance which would have aroused 
the suspicion of anyone. When the goldsmith was summoned at the 
railway station to test the ,article on the spot, and he expressed the 
E opinion that it was made of pure gold, there was no scope for taking any 
other view. The acceptance of this evidence would, in view of the provi-
sions of s. 123 of the Customs Act, result in the burden of proof being 
shifted on the person from whom the article was seized to establish that 
it was not smuggled gold, which would justify raising the presumption 
that the article in question was made of smuggled gold. [683C; 681E] 
F 
Isardas Dau/at Ram & Ors. v. The Union of India & Ors., (1962] 
Suppl. 1 S.C.R. 358, referred to. 
2. The High Court ·was altogether unjustified in rejecting the 
application of the prosecution invoking the powers of the Court under s. 
G 
391 of the Code of Criminal Procedure for reception of additional evi-
dence. The prayer was rejected by the High Court on the ground that it 
did not consider it 'expedient in the interests of justice to open a new 
vista of evidence' in view of the fact that the offence had taken place six 
years back. The mere fact that six years had elapsed, for which time lag 
the prosecution was in no way responsible was no good ground for 
H refusing to act in order to promote the ends of justice in an age when 
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