KOSHAL, J. - (1.) BY this judgment we shall dispose of Criminal Appeals Nos. 496, 497 and 498 of 1976 and No. 321 of 1977 as well as Special Leave Petition No. 490 of 1979, all of which are directed against a common judgment of the Bombay High Court date 27/07/1975.
(2.) THE number of persons accused at the trial giving rise to the appeals and petition above-mentioned was 14. For the purpose of better appreciating the facts of the case they may be classified under three heads as shown in the following tables :- JUDGEMENT_206_1_1980Html1.htm This classification would now show that accused Nos. 1 to 3, 5 and 6 are officials of the Central Exicse and Customs Department stationed at Dahanu while those in Table II are officials of the same category stationed at Tarapur. Table III, on the other hand, contains the names of three non-officials hailing from Dhakte-Dahanu and Bombay. The 14 accused were tried for offences under Sections 120-B, 161, 165-A and 218 of the Indian Penal Code, Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and Sections 135 and 136 of the Customs Act, the charge being sub-divided into 66 counts. The substance of the allegation agains them was that accused Nos. 1 to 11 entered into a conspiracy with accused No. 13 who is a smuggler, and his two associates, accused Nos. 12 and 14, from the 1st to 3rd of March 1967 at Varor and Tarapur (District Thana) the common object of which was to attach 39 packages of smuggled goods out of 103 and allow the rest to escape attachment, which conspiracy was acted upon and it pursuance of which accused Nos. 1 to 11 accepted from accused No. 13 illegal gratification in the form of money amounting in all to Rs. 48,800.00 in addition to some smuggled goods, as a reward for the favour shown to accused Nos. 12 to 14. The Additional Special Judge, Thana, who held the trial found the prosecution was poved against accused Nos. 1 to 13 who were convicted of various offences covered by different counts of the charge and were sentenced in consequence to imprisonment for periods ranging from six months to six years and to fines ranging from Rs. 50.00 to Rs. 10,000.00. Accused No. 14 was however acquitted of the charge in its entirety. The 13 persons convicted by the trial Judge filed six appeals against his judgment while the State also filed an appeal against the acquittal of accused No. 12 on some of the heads of charge. During the pendency of these appeals, accused No. 13 died and his appeal therefore abated except in so far as the fine imposed on him was concerned. The High Court accepted the appeal preferred by accused No. 12 and acquitted him of the charge. All the other appeals were however dismissed by it except in relation to the sentences which were reduced in regard to some counts. The judgment of the High Court is challenged in Criminal Appeal No. 496 of 1976 by accused No. 2, in Criminal Appeal No. 497 of 1976 by accused No. 3 in criminal Appeal No. 498 of 1976 by accused No. 4, in Criminal Appeal No. 321 of 1977 by accused No.1 and is Special Leave Petition No. 490 of 1979 by accused Nos. 5 to 11. The prosecution case may be stated thus. Indur Dadlani (accused No. 13) travelled from Bombay to Dubai on the 5/02/1967 by air (vide documents exhibits 72 and 107). Eleven days later, i. e., on the 16/02/1967 he flew from Baharin to New Delhi (Vide document exhibit 76). On the next day, Ramchandani (Prosecution witness 1) who was then working as Rummaging Inspector, Town Intellignence, Customs Department, Bombay, received secret information to the effect that the two air journeys undertaken by accused No. 13 were made with the object of smuggling foreign goods into India and that such goods consisting mainly of textiles, medicines and watches valued in all at about Rupees 20 lacks were to be brought to India by sea during the next few days. The informant promised to secure further details and convey the same to Ramchandani (Prosecution witness 1). All this information was recorded by Ramchandani (Prosecution witness 1) in document exhibit 29. On the 1st of March 1967 the informant visited Ramchandani (Prosecution witness 1) again and told him that smuggled goods were to arrive near Poisar and would be transported from their in a truck. Ramchandani (Prosecution witness 1) contacted the Assistant Collector Mr. Ganguli (Prosecution witness 2) and the two of them accompanied by other officials of the Customs Department as, also by police personnel visited the Poisar seashore but were unable to trace any smuggled goods or the truck in which the same were intended to be transported. On the 2nd of March 1967, the informant provided further informantion to the Customs Officers. A party consisting of Assistant Collector of Customs Ganguli (Prosecution witness 2), Rummaging Inspector of Customs Ramchandani (Prosecution witness 1) and Intelligence Officers of Customs R. T. Sainani (Prosecution witness 3) and G. R. Patankar (Prosecution witness 9) visited Poisar a second time, after deputing Preventive Officers of Customs D. Y. Agarkar (Prosecution witness 8) and Balasundaram to keep a watch at the Mahim check-post and intercept any truck which aroused suspicion. The search as Poisar again proved futile when on Sadiq Mohomed suggested to the Customs party that the place in question might be Boisar and not Poisar, The party visited Police Station Thana and from there took along Inspector of Police K. T. Sainani (Prosecution witness 11), Sub-Inspector of Police Khanvilkar and some armed constables. The party then visited Boisar but without success. As the existence of a Hanuman Temple in the vicinity of the place where the smuggled goods were to arrive had been mentioned by the informant, a suggestion was made by a police constable that the party might visit Tarapur which lay near such a temple. The party reached Tarapur at about 5 A. M. on the 3rd of March 1967, and then decided to obtain assistance from the Central Excise staff attached to the Tarapur Customs House. A knock at the door of the House brought out accused No. 1 and the party entered the premises to find accused Nos. 1 to 11 present therein. It was discovered that accused Nos. 1 to 3, 5 and 6 had come to Tarapur on the 1st of March 1967 in response to a letter (exhibit 141) addressed by accused No. 4 to accused No.1 and asking for assistance in seizing contraband articles which were likely to land any time on the night following. When Ganguli (Prosecution witness 2) disclosed the purpose of his visit he was informed by accused No. 1 that the latter's party had already seized contraband goods consisting of 39 packages valued at about rupees two lakhs. The revelation aroused suspicion as Ganguli's information was that the goods were contained in 103 packages and were worth about Rs. 20 lakhs. When asked as to whether any wrist watches formed part of the haul, accused No. 1 replied in the negative, and produced two panchanamas prepared in connection with the seizure. Shorty afterwards it was noticed that some packages were lying in the hall where Ganguli (Prosecution witness 2) was talking to accused No. 1. On an enquiry from Ganguli as to whether those packages formed part of the haul, accused No. 1 replied that that was not so and added that all the seized goods had been deposited in the muddemal room. At this juncture, Ganguli (Prosecution witness 2) wanted to have a look at the seized goods and accused No. 4 took him to the muddemal room where Ganguli was shown the 39 packages. Ganguli (Prosecution witness 2) then enquired from accused No. 1 about the reason for the presence of unattached packages lying in the hall. Accused No. 1 stated that the same were meant for the use of the Customs staff including himself. Ganguli's informant had further told him that accused No. 13 had despatched a truck to transport the goods, that the truck-driver had been given a sum of Rs. 50,000.00 by accused No. 13, that the truck, while it was preparing to leave, was found to be in need of some repairs and that accused No. 13 had arranged to send some spare parts for it. Ganguli's suspicion having been aroused by what had transpired at the Tarapur Customs House he at once confronted accused No. 1 with a question as to what had happened to the money which the truck-driver had brought from Bombay. At this query accused No. 1 broke down and revealed that he had taken a sum of Rs. 10,000.00 and that the remaining amount had been taken by other members of the staff from accused No. 13. Accused Nos. 1 to 11 then produced currency notes as detailed in exhibit 31 which may be reproduced here with advantage: "Indian currency surrendered on 3/03/1967 by JUDGEMENT_206_1_1980Html2.htm Each of the 11 accused stated to Ganguli (Prosecution witness 2) that he had received the amount produced by him from accused No. 13. However, this fact was not mentioned in exhibit 31 which Intelligence Officer Sainani (Prosecution witness 3) prepared at the instance of Ganguli (Prosecution witness 2) and which was not authenticated at the time by either Sainani (Prosecution witness 3) or Ganguli (Prosecution witness 2) affixing his signature to it. The money, amounting in all Rs. 48,800.00 was, however, directed by Ganguli (Prosecution witness 2) to be deposited by accused Nos. 1 to 11 in the room occupied by accused No. 4. In addition to the packages lying in the hall some other packages and articles were found at other places inside the Customs House premises. When Ganguli (Prosecution witness 2) made enquiries from accused Nos. 1 to 11 each one of them, except accused Nos. 2 and 3, admitted having received some of the goods (in addition to money) from accused No. 13 by way of illegal gratification as a consideration for allowing him to remove without let or hindrance 64 of the 103 smuggled packages. Ganguli (Prosecution witness 2) directed Intellignece Officers Sainani (Prosecution witness 3) and Patankar (Prosecution witness 9) to prepare slips indicating separately each article and sum of money produced by each accused and admitted by him to have been received from accused No. 13. No such slip was however prepared by Sainani (Prosecution witness 3) while Patankar (Prosecution witness 9) prepared only five slips on each of which he scribbled the name of one of the Sepoys. All these goods were transferred in separate lots to the room occupied by accused No. 4, which was then placed in charge of a police guard. Ganguli (Prosecution witness 2) contacted higher officers of the Customs and Police Departments on telephones and in response to his call, Superintendent of Police H. F. Almeida (Prosecution witness 37) and Deputy Superintendent of Police C. B. I. Bombay N. P. Rege (Prosecution witness 22) reached the Tarapur Customs House at 4.15 P. M. They were apprised of the details by Ganguli (Prosecution witness 2) whose complaint was recorded by D. S. P. Rege (Prosecution witness 22). A Panchanama of the currency notes worth Rs. 48,800.00 produced by accused Nos. 1 to 11 was prepared. It was at this stage that exhibit 31 was signed by Ganguli (Prosecution witness 2) and handed over to Rege (Prosecution witness 22). Patankar (Prosecution witness 9)then made a Panchanama (exhibit 46) of the articles which accused Nos. 1 to 11 had received from accused No. 13 as part of the illegal gratification. The completion of the panchanama took quite a few hours and went on into the 4/03/1967.
(3.) 52 witnesses were produced at the trial in support of the prosecution case. They included residents of Varor who were expected to depose that 103 packages had arrived at the seashore either on the 28th February or the 1st of March 1967, that those packages were removed to Varor village by the villagers and that it was thereafter that a tripartite deal between accused No. 13, the villagers and the officials attached to the Tarapur Customs House was struck, as a result of which 39 packages were seized by the Customs staff while the rest were allowed to be taken away by accused No. 13 who paid a sum of Rs. 5000.00 to a leader of the villagers as hush money, in addition to what he had to pay and give to accused Nos. 1 to 11. All the witnesses from Varor, however, turned hostile to the prosecution. The depositions of the other witnesses sought to prove the prosecution case are set out earlier. The defence case was that only 39 packages were found on the seashore and were seized by the Customs Officials. According to the accused, those 39 packages were taken to the Tarapur Customs House where they were opened and it was then that a detailed Panchanama of their contents was prepared. The accused pleaded that general warning had been issued to the villagers to deposit any goods that they might have removed from the seashore, on pain of legal action. According to accused No. 1 he had gone out of the Customs House at about 4 A. M. on the 3/03/1967 when he saw a couple of bundles lying in the compound thereof the had them deposited inside the hall. It was further averred that the goods found lying at various places inside the premises of the Customs House were most probably deposited thereat by villagers in response to the warning issued as stated above. The accused denied all knowledge of the source of the amount of Rs. 48,800.00 and denied that any of them had produced any money to Ganguli (Prosecution witness 2) or had admitted the receipt of any illegal gratification whatsoever from accused No. 13.;