Decided on August 11,1961

STATE Respondents


S.K.SEN, J. - (1.) The appellants of the two appeals Sitaram Agarwalla and Wang Chih Kaw have been convicted under Section 167(81) of the Sea Customs Act. Sitaram Agarwala has been sentenced to pay a fine of Rs. 2000/-, in default, to suffer rigorous imprisonment for six months, and Wang Chih Kaw has been sentenced to rigorous imprisonment for three months and to pay a fine of Rs. 1000/-, in default, to suffer rigorous imprisonment for three months more.
(2.) The prosecution case was briefly as follows: On 25-8-58, P. W. I Ram Sevak Ojha, a con-stable attached to the Detecting Department, noticed Sitaram Agarwalla and one Bholanath Gupta at the crossing Hariram Goenka Street and Kalakar Street. In consequence of an information received the constable decided to follow them. Sitaram Agarwalla and Bholanath Gupta got into a bus of route No, 32 and the constable also boarded the same bus. Sitaram Agarwalla and Bholanath Gupta got down from the bus at the junction of B. K. Pal Avenue and J. M. Avenue and so did the constable. These men took their seat in a park known as Narendra Deb Square. The constable kept watch on them from a distance. After a while these men came out and stood on the western footpath of J. M. Avenue. After sometime a baby taxi came there from the south along J. M. Avenue and stopped there. The accused Wang chih Kaw was in that baby taxi. He came down and shook, hands with the accused. Sitaram Agarwalla and all the three then got into the baiby taxi. When the taxi was about to start, the constable disclosed his identity to the driver and asked him to stop. He asked all of them to go to the thana, but the accused Sitaram Agarwalla and Bholanath Gupta got out of the taxi and tried to run away. The constable caught hold of them and put them inside a police wagon which happened to come up. The Chinese accused then tried, to escape. The constable asked the members of the public to secure him, and three young men of whom two were college students, namely, P.W. 2 Santi Kumar Sen and P. W. 3 Alok Kumar Dutta and P. W. 5 Tapaa Kumar Mnjumdar, chased the Chinese gentleman. who threw away three packets which these men picked up. A Sergeant, T. Mukherjee, came on a motor cycle from the opposite direction and he actually secured the Chinese accused Wang Chih Kaw, and the three young men handed over the three packets to the sergeant, T. Mukherjee. The sergeant took the Packets as well as the Chinese accused to Shampukur Police station and handect over the packets there as well as the accused. The packets were found to contain 23 gold bars of about 16 tolas each with Chinese inscriptions on them. On search of the person of Sitarane Agrarwalla who was also taken to Shampukur Police station, a sum of RS. 49,320/- in notes of various denominations was found with him.
(3.) Subsequently, the Customs Department took charge of the gold bars and by an order of the Customs Collector, the gold bars were confiscated. The police, after investigation, sent up the three accused Wang Chih Kaw, Sitaram Agarwalla and Binolanath Gupta in respect of an offence under Section 167(81) of the Sea Customs Act. The learned Presidency Magistrate who tried the case held that the case was not sufficiently proved against Bhclanath Gupta and acquitted him. He, however, convicted, and sentenced Sitaram Agarwalla and Wang Chih Kaw as already stated. The two accused have filed two separate appeals which have been heard together.;

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