Hukma vs State of Rajasthan

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 152 of 1962

Decision Date: 29 August 1963

Coram: K.C. Das Gupta, M. Hidayatullah

In the matter styled Hukma versus State of Rajasthan, the Supreme Court delivered its judgment on 29 August 1963. The opinion was authored by Justice K. C. Das Gupta, with Justice M. Hidayatullah sitting on the bench. The case is reported in the 1965 volume of the All India Reporter at page 476 and also appears in the 1964 edition of the Supreme Court Reporter, volume 4, page 708. The statutory framework relevant to the dispute comprised the Sea Customs Act of 1878, specifically sections 167(81) and 178‑A, the Land Customs Act of 1924, particularly clauses (e) and (g) of sections 2 and 3, and the Central Excises Rules of 1944, rule 2(ii)(A)(1). The central issues involved the seizure of gold, the jurisdiction of customs officers, the meaning of the term “adjoining,” and the proof of mens rea on the part of the appellant.

The factual matrix recorded that the appellant was discovered while travelling on a passenger train travelling between Kerla and Pali stations, carrying 286 tolas of gold. The discovery was made by a Sub‑Inspector of the Barmer District. Following the seizure of the gold, criminal proceedings were instituted against the appellant. The trial court acquitted the appellant, but the Rajasthan High Court subsequently convicted him. On appeal before this Court, the appellant argued that the seizure had not been proved, that the Sub‑Inspector who effected the seizure was not a customs officer for the place where the seizure occurred and therefore the seizure could not be sustained under the Land Customs Act, and that, irrespective of jurisdiction, the prosecution had failed to establish the requisite mens rea for the offence.

The Court examined the provisions of section 3 of the Land Customs Act, which empowers the Central Government to appoint, by notification, a Collector of Land Customs for any specified area adjoining a foreign frontier. The same section also authorises the Government to appoint, by similar notification, additional persons as customs officers for that same area. The notification relied upon by the Court was issued under the authority of sub‑section (1) of section 3, read with a Finance Department notification dated 1 December 1924. That notification appointed, for the areas adjoining the land‑customs frontier separating West Pakistan from India, the officers of the Government of Rajasthan listed in an annexed Schedule to act as land customs officers within the jurisdiction of the Collector of Land Customs, Delhi. The Schedule named all officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of rank Head Constable and above who were posted in the districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore.

The Court held that the term “adjoining” in the notification must be interpreted broadly to encompass the entire contiguous block formed by the States of Punjab, Jammu and Kashmir, and Rajasthan together with the Union Territories of Himachal Pradesh and Delhi, treating this whole region as one area adjoining the West Pakistan Frontier. Consequently, a single Collector of Land Customs was appointed for this entire block. Because the officers listed in the Schedule were appointed for the whole adjoining area, each of them was deemed a customs officer not limited to a particular district but bearing jurisdiction over the entire area covered by the Collector of Land Customs, Delhi. Accordingly, the Sub‑Inspector who carried out the seizure, being an officer named in the Schedule, possessed the requisite authority to make the seizure at the place where it occurred.

In this case, the Court noted that the jurisdiction of the Collector of Land Customs, Delhi, covered the entire area described in the Schedule, and that the Sub‑Inspector named in the Schedule was therefore an officer authorized throughout that whole jurisdiction, including the specific location where the seizure was effected. Consequently, the Sub‑Inspector possessed the competence to make the seizure. The Court further held, based on the evidence, that the account of the recovery of gold from the appellant was accurate, and that the manner, quantity, and form in which the gold was carried demonstrated that the appellant knowingly engaged in smuggling gold with the intent to evade the prohibition applicable to the import of gold into the country. The judgment was rendered in criminal appellate jurisdiction in Criminal Appeal No. 152 of 1962, an appeal by special leave from a judgment and order dated 4 April 1962 of the Rajasthan High Court in Criminal Appeal No. 505 of 1961. Counsel for the appellant, consisting of several members, represented the appellant, while counsel for the respondent represented the State. The judgment, delivered on 29 August 1963 by Justice Das Gupta, concerned an appeal by special leave against a conviction and sentence under section 167(81) of the Sea Customs Act, 1878. The trial court had acquitted the appellant, but the Rajasthan High Court, on appeal by the State of Rajasthan, set aside that acquittal, convicted the appellant under the same provision, and imposed a sentence of rigorous imprisonment for one year. The prosecution alleged that, after receiving information that gold smuggled from Pakistan was being transported, Sub‑Inspector Lal Singh of the Barmer check‑post pursued the appellant onto a railway train at Luni station, and while the train was running between Kerla and Pali stations, searched the appellant’s person and discovered 286 tolas of gold concealed in a pouli under his trousers. Acting under a reasonable belief that the gold was smuggled, Lal Singh seized it. The seized items comprised six gold blocks marked “999” with the inscription “N. M. Rothschild & Sons,” twenty‑two gold bars also marked “999,” three small pieces of gold, and one pair of murkies. After preparing a seizure list in the presence of witnesses, Lal Singh presented the appellant together with the seized gold before the Superintendent, Land Customs, Barmer. By an order of the Collector of Customs, New Delhi, dated 19 July 1957, the gold was confiscated and a fine of Rs 10,000 was imposed on the appellant. Subsequent criminal proceedings were instituted against the appellant for an alleged offence under section 167(81) of the Sea Customs Act. The prosecution asserted that, under section 178‑A of the Sea Customs Act, the burden of proving that the gold was not smuggled rested on the accused, and further advanced additional arguments in support of its case.

The prosecution asserted that the gold had been smuggled and that the appellant had knowingly carried the gold with the intention of evading the regulations that prohibited the import of gold into India. The accused entered a plea of not guilty and based his principal defence on the claim that no gold had been recovered from him. The trial court concluded that the prosecution had failed to demonstrate that any gold had been recovered from the accused. In addition, the trial court accepted the defence submission that the official named Lal Singh lacked the authority to search the appellant and to seize any gold at the location where the seizure was alleged to have taken place. According to the learned magistrate, even if a seizure had occurred, it had not been effected under the Land Customs Act and therefore could not be said to have been made “under the Act” within the meaning of section 178‑A of the Sea Customs Act; consequently, there was no requirement for the accused to prove that the gold was not smuggled. On the basis of the evidence presented by the prosecution, the magistrate was not persuaded that the gold was smuggled, and he accordingly acquitted the accused. The High Court reached opposite conclusions on all of these points. It held that the testimony of Lal Singh concerning the seizure was credible and that the seizure of gold from the accused had been proved satisfactorily. The High Court further found that Lal Singh possessed the necessary authority to seize the gold at the place where the seizure was alleged to have been made and that section 178‑A of the Sea Customs Act was applicable. In the High Court’s view, the accused had failed to demonstrate that the gold was not smuggled; therefore, under the provisions of section 178‑A and on the basis of the evidence on record, the gold was established to be smuggled gold. The High Court concluded that every element of the offence had been proved, resulting in the conviction and sentencing of the accused as previously detailed. On appeal, three grounds were raised by counsel for the appellant. The first ground contended that the High Court was not justified in overturning the trial court’s finding that the seizure of gold from the accused had not been proved. The second ground argued that the High Court erred in concluding that Lal Singh had the authority to seize the gold at the location in question. The third ground asserted that, even assuming that section 178‑A applied and the gold was smuggled, the prosecution had failed to establish the requisite mens rea on the part of the accused to constitute the offence. Regarding the question of seizure, the prosecution relied on the testimony of Lal Singh, who gave a detailed account of how he followed the accused onto a train at Luni station, conducted a search of the accused’s person in the presence of witnesses, and recovered from a pouli tied beneath the accused’s trousers the gold identified in the record as Exhibit P.M. 1‑32.

The gold that was identified in the court record as Exhibit P.M. 1‑32 was alleged to have been recovered from the accused’s trousers. The officer who claimed to have prepared a memorandum of seizure at the time of the operation produced a document that was marked as Exhibit P. 3. That document listed the names of three individuals who were described as witnesses to the search. None of those three persons was examined by the prosecution. The third name recorded in Exhibit P. 3 was “Pukh Raj, son of Awasthi Mal, aged about twenty‑two years, resident of Ajit.” In the defence’s case, a person named Pukh Raj was examined; he gave his father’s name as Basti Mal, stated that he lived in Ajit, and asserted that he was the only individual with that name in the village. The High Court appeared to doubt whether the Pukh Raj examined by the defence was the same person named in the seizure list. That doubt was challenged by counsel, who described the High Court’s conclusion as unjustified. Whether the defence‑examined Pukh Raj is identical with the Pukh Raj mentioned in the seizure list is, however, of little consequence, because the prosecution failed to call any of the witnesses who were purportedly present at the time of the search and seizure to corroborate the testimony of the officer, Lal Singh. The learned magistrate identified this failure to examine the witnesses as the principal reason for his inability to accept Lal Singh’s testimony. Although the High Court accepted Lal Singh’s evidence, its judgment does not indicate that the High Court judges considered the fact that the alleged search witnesses had not been examined. Consequently, the Court deemed it necessary to review the evidence independently to determine whether the alleged seizure had been proved. The testimony of Lal Singh on this point had already been noted. It is also important to observe that defence witness No. 2, Poonam Chand, gave testimony concerning the search. He stated that the police conducted a search in the compartment while the train was travelling from Luni to Pali and that “the police took search of the accused Hukma present before the court and of two or three more persons named Kesrimal and Tarachand.” The witness further said that no gold was recovered from the possession of the accused Hukma Ram, but that a purse was recovered from the same compartment. It is noteworthy that during Lal Singh’s examination, no suggestion was made in cross‑examination that any other person besides the accused had been searched in that compartment. Therefore, it is reasonable to infer that when Poonam Chand described a search in the compartment of Hukma and mentioned the recovery of a purse—though he stopped short of detailing precisely what was recovered—his testimony, albeit unintentionally, lends support to Lal Singh’s account of the search and the recovery of gold. It does not follow logically to assume that if two other persons had been searched and gold had been found in one of them, the prosecution’s case would be undermined.

The Court observed that the appellant, who worked as a pointsman in the railway, had been falsely implicated and that the individual from whom the gold had been recovered should have been permitted to escape. In his statement, the accused alleged that Lal Singh bore personal hostility toward him because, on one occasion, Lal Singh had asked him to serve water and the accused had not complied immediately. No evidence of this allegation was presented to Lal Singh during cross‑examination, and the Court found the claim to be completely unfounded. Upon evaluating Lal Singh’s testimony together with the testimony of the appellant’s own witness, Poonam Chand, the Court concluded that the narrative concerning the recovery of gold from the accused was credible. The Court noted that three witnesses listed in record had not appeared to support the prosecution, but held that their absence did not negate the truth of search and seizure described by Lal Singh. The counsel for the appellant argued that Lal Singh was not a Customs Officer for place of seizure, so the seizure could not have been effected under Land Customs Act and Sea Customs Act. The Court explained that the answer to this contention required an interpretation of the notification that appointed Customs Officers for the areas adjoining the frontier between West Pakistan and India. The Court reproduced the amended 1956 notification, which reads: “In exercise of the powers conferred by Sub‑section (1) of section 3 of the Land Customs Act 1924 read with the notification of the Government of India dated 1 December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontiers separating West Pakistan from India the officers of the Government of Rajasthan specified in the schedule annexed, to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi.” The schedule lists all Rajasthan Civil Police and Rajasthan Armed Constabulary officers of rank Head Constable or higher who are posted in Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore. The counsel for the appellant argued that the word ‘adjoining’ should be given a narrow construction, limiting the authority of the Customs Officers to areas only a few miles from the border. He further contended that, even if a broader meaning were accepted, the notification on a reasonable interpretation authorized only the officers listed in the schedule to act as Customs Officers within those specified districts. He added that such authority could not extend to any area beyond the districts mentioned in the schedule. The trial court adopted this narrow construction and observed that the place of seizure was not located in any of the districts enumerated in the schedule. It held that Lal Singh lacked the authority to conduct the search.

The High Court had held that every officer listed in the Schedule was appointed as a Customs Officer for the whole territory that fell within “the jurisdiction of the Collector of Land Customs, Delhi.” The Court now explains that it considers this interpretation to be both correct and the only reasonable construction of the statutory scheme. Section 3 of the Land Customs Act empowers the Central Government, by means of a notification published in the official gazette, to designate a single individual as the Collector of Land Customs for any area that adjoins a foreign frontier and that is described in the notification. The same provision also permits the Central Government, through a similar notification, to appoint such other persons as it deems appropriate to act as Customs Officers for that same area.

The Act defines “foreign frontier” in section 2, clause (e) as the boundary that separates any foreign territory from any part of India. It defines “Land Customs area” in clause (g) of the same section as any area adjoining a foreign frontier for which a Collector of Land Customs has been appointed under section 3. From the definition of foreign frontier it follows that any region adjoining the frontiers that separate a foreign territory from India is encompassed within the expression. The question then arises as to what the term “adjoining” signifies. Counsel for the petitioner suggested that only a few miles adjacent to the frontier could be described as adjoining. The Court finds no justification for such a narrow meaning. While it is true that a village immediately next to the frontier adjoins it, it is equally correct to describe an entire district that lies nearest to the frontier as adjoining the frontier, and there is no reason to regard the whole State of Rajasthan as not adjoining the West Pakistan Frontier.

The Court observes that the Central Government appears to have treated the contiguous block comprising the State of Punjab, the State of Jammu & Kashmir, the State of Rajasthan, Himachal Pradesh and Delhi as a single area that adjoins the West Pakistan frontier, and for that single area it appointed a Collector of Land Customs. This conclusion is supported by the order that appointed the Collector of Central Excise, Delhi, to also be the Collector of Land Customs (Notification No. 2L Customs dated 25 January 1958), together with Rule 2(ii) A(i) of the Central Excise Rules, which defines “Collector” to mean “in the State of Punjab, Jammu and Kashmir and Rajasthan and in the Union Territories of Himachal Pradesh and Delhi, the Collector of Central Excise, Delhi.” Accordingly, the jurisdiction of the Collector of Central Excise, Delhi, extends beyond Delhi to include the States of Punjab, Jammu & Kashmir and Rajasthan as well as the Union Territories of Himachal Pradesh and Delhi. It was for this entire region that the Collector of Central Excise, Delhi, was appointed Collector of Land Customs. The resulting position is therefore that for the whole area of Punjab, Jammu

In this case, the Court observed that the Central Government had appointed a single individual as Collector of Customs for the entire area comprising Punjab, Jammu and Kashmir, Rajasthan, Himachal and Delhi. When the Government later issued a notification appointing Land Customs Officers for the areas adjoining the land‑customs frontiers that separated West Pakistan from India, it specified that the officers listed in the schedule were to serve “within the jurisdiction of the Collector of Land Customs, Delhi.” The Court found that the language of the notification made it clear that each officer named in the schedule was to act as a Customs Officer for the whole jurisdiction of the Collector of Land Customs, Delhi, and not merely for the particular district mentioned beside his name. The Court saw no reason to read the schedule as limiting the area in which an officer could operate. Although the schedule identified officers by district, this identification did not confine their authority to those districts; rather, it merely listed the officers who were to exercise their powers throughout the entire area that fell under the Collector’s jurisdiction. Any interpretation contrary to this plain meaning would defeat the purpose for which the Land Customs Officers were appointed. Accordingly, the Court upheld the construction adopted by the High Court, holding that Lai Singh, who was an officer in the District of Barmer as noted in the schedule, was an officer for the whole jurisdiction of the Collector of Land Customs, Delhi, including the location where the seizure occurred, and therefore he possessed the competence to make the seizure. The Court then turned to the remaining point raised by counsel, namely, that even assuming Lai Singh had authority to seize at the place of seizure and that section 178‑A of the Sea Customs Act applied, the prosecution still had to establish the accused’s mens rea for the offence. Counsel correctly observed that while section 178‑A shifts the burden of proving that the gold was not smuggled onto the accused, it does not aid the prosecution in demonstrating that the accused knowingly carried the gold to evade the prohibition then in force on gold imports. The Court noted that, once it was found—by virtue of section 178‑A—that the accused had failed to discharge the burden and therefore was carrying smuggled gold, the surrounding facts—such as the circumstances of discovery, the manner of carriage, the large quantity involved, and the form of the gold as blocks and bars—combined to establish beyond doubt that the accused was knowingly transporting the gold with the intention of evading the applicable prohibition.

In this case, the Court observed that the gold was being carried in the form of blocks and bars, and that the majority of the gold recovered was found in those blocks and bars. The Court stated that these facts, taken together with the manner in which the gold was concealed, established beyond a shadow of doubt that the accused had knowledge of the gold and intended to evade the prohibition that was then in force concerning the import of gold into India. Counsel for the accused, Mr. Kapur, argued that persons who transport gold often do so in a pouli hidden under trousers, and that such a method could explain the presence of the gold. The Court acknowledged that this possibility might exist in some cases. However, the Court added that an additional circumstance was relevant: the accused was a pointsman of the Railway, a position not normally associated with possession of a large quantity of gold. The gold in question consisted of six blocks and twenty‑two bars together with some smaller pieces and one pair of murkees, amounting to a total weight of two hundred eighty‑six tolas and eleven annas, which is approximately three kilograms. Considering all these circumstances, the Court concluded that it could not accept the suggestion of learned counsel that the accused might have been carrying the gold innocently after having purchased it from another person. The Court further held that the High Court was correct in finding that every element of the offence under section 167(81) of the Sea Customs Act had been proved. It was noted that the parties did not dispute that, if the narrative of the recovery of the gold from the appellant is accepted, the facts were sufficient to show that Lal Singh seized the gold with a reasonable belief that it constituted smuggled goods. In the view of the Court, it was unnecessary to address the additional argument presented by counsel for the State, Mr. H. R. Khanna, who contended that, apart from section 178‑A, the accused’s guilt could also be established by his confession before the Deputy Superintendent, Land Customs, a confession that was corroborated by the recovery of the gold. The Court therefore concluded that all the points raised in the appeal on behalf of the appellant failed, and accordingly dismissed the appeal.