ASSTT COLLECTOR OF CUSTOMS, NEW DELHI Vs. HARBANS LAL SHARAF,

JUDGEMENT

(1.) HARBANS Lal Sharaf alias Punjabi Seth of M/s. Harbans Lal Bansi Dhar, F -73, Moti Bazar, Chandni Chowk, Delhi, was tried (sic) (for importation of contraband gold?) into India and smuggle Indian currency and foreign exchange out of India in contravention of the restrictions imposed under Section 8 of the Foreign Exchange Regulations Act, 1947 and Section 19 of the Sea Customs Act, 1878 punishable under Section 120 -B of the Indian Penal Code and for the substantive offence under Section 167 (81) of the Sea Customs Act, 1878. Shri S. C. Jain, Additional Chief Metropolitan Magistrate, New Delhi vide his judgment dated January 21, 1975 acquitted Harbans Lal Sharaf alias Punjabi Seth (hereinafter referred to as the respondent) of the offence punishable under Section 120 -B of the Indian Penal Code but convicted him under Section 167 (81) of the Sea Customs Act, 1878 and sentenced him to fine of Rs. 3000/ - with the direction to undergo rigorous imprisonment for six months in default of payment of fine. Feeling aggrieved by the acquittal and the sentence, Assistant Collector of Customs, New Delhi preferred Criminal Appeal No. 104 of 1975 and Criminal Revision No. 73 of 1975. Inasmuch as both these matters arise out of the same judgment, it would be expedient to dispose them of by a single judgment.

(2.) BRIEF facts of the prosecution case are that in consequence of information received by the customs authorities at Delhi lookout was kept by Y. R. Sachdev (P. W. 5), Preventive Superintendent Customs, and party for B. O. A. C. Flight No. 936 scheduled to arrive from London via Zurich -Cairo Tehran at 5.25 A. M. on June 27, 1962 at Palam Airport, New Delhi. Members of the crew were subjected to Interrogation after obtaining usual declaration in the Crew Baggage Declaration Form. Charles Maloney (P. W. 31), Flight Engineer of the aircraft made declaration, copy whereof is Ex. P. W. 3/A. Thereafter he was subjected to search by Narsingh Dass (P. W. 19), Deputy Superintendent Customs, in the presence of public witnesses, K. L. Sikka (P. W. 4) and G. N. Mehra (P. W. 8), and others. He was found to carry 15 bars of gold bullion weighing 15 kilograms valued at about Rupees 1,80,000/ - concealed in a specially prepared jacket which he was wearing. Each bar was wrapped with a paper slip bearing the name 'Noora'. On being questioned if he had obtained the requisite permission of the Reserve Bank of India to import gold into India, Charles Maloney answered in the negative. The search of the brief case of Charles Maloney yielded incriminating documents, inter alia, a slip, copy whereof is Ex P. W. 3/H, bearing names, Latif Hoory, Rasik Lal Shah and Harbans Lal Bansi Dhar Sharaf and particulars including telephone numbers. The gold and the documents were seized and memo, copy whereof is Ex. P. W. 3/B, was prepared by R. N. Chopra (P. W. 12), Inspector Preventive Customs, and attested by witnesses. Charles Maloney, on being questioned in regard to these writings, stated that he had been given the bars of gold at Rome by Latif Hoory, a resident of Beirut, for being delivered to Rasik Lal G. Shah or Harbans Lal Sharaf at Delhi. He also disclosed that Rasik Lal G. Shah was the clerk of Shanti Lal Laxmichand Modi (shortly S. L. Modi) of Bombay and he had carried gold on earlier occasions for S. L. Modi from Latif Hoory. He further disclosed that Rasik Lal G. Shah would be found in Hotel Airlines and he was to meet him (Charles Maloney) in Ashoka Hotel, New Delhi.

(3.) IN the course of further enquiries room No. 115 occupied by Rasik Lal G. Shah was searched by A. K. Malhotra (P. W. 14), Inspector Preventive and Intelligence, in the presence of Pahalaj Rai N. Rupani (P. W. 27), Assistant Manager, Hotel Airlines and Panna Lal (P. W. 15). Person of Rasik Lal G. Shah was searched and documents, copies whereof are Ex. P. W. 13/B to Ex. P. W. 13/G and Ex. P. W. 13/G -l, were seized vide memo dated June 27, 1962 Ex. P. W. 13/A. A. K. Malhotra recorded statement, copy whereof is Ex. P. W. 14/B, on that day. On the following day, he recorded further statement, copy whereof is Ex. P. W. 14/C.