judgement:
Appeal No. 133 of 1955.
Appeal by special leave from the judgment and order dated November 19,1954, of the Andhra High Court in Writ Petition No. 342 of 1954.
N. C. Chatterji, M. section K. Sastri and Sardar Bahadur, for the appellant.
Porus A. Mehta, T. V. R. Tatachari and T. M. Sen, for the respondent.
November 29.
The Judgment of the Court was delivered by VENKATARAMA AYYAR J.
The appellant was recruited to the Madras Provincial Judicial Service as District Munsif in 1935.
In 1949 he was promoted to the office of Subordinate Judge, and on June 19, 1950, he was posted as Subordinate Judge of Masulipatnam, Krishna District.
Among the suits which he tried were O.S. No. 95 of 1946 and O.S. No. 24 of 1949, which were connected, and on July 27, 1950, arguments were heard therein, and judgment reserved.
On August 22, 1950, while judgment was still pending, Lingam 54 416 Sitarama Rao, who was the fifth defendant in both the suits, filed an application in the High Court of Madras for transferring them to some other court on the ground that the appellant was attempting through his brother to obtain bribe from the parties, and on this application, the High Court passed an order on the same date, staying the delivery of judgment.
The suits themselves were eventually transferred to the court of the Subordinate Judge of Gudivada, and the appellant was also transferred on September 16, 1950, to the Subordinate Court of Amalapuram in East Godavari District.
Thereafter, the High Court started investigation into the allegations made in the affidavit in the stay petition, and as a result of the enquiries and reports received, the following charge was framed against the appellant on April 2, 1953: " That you in or about August 1950 being at that time Additional Sub Judge, Masulipatnam, entered into a conspiracy with your brother Md. Riazuddin alias Basha for the purpose of obtaining a bribe from the parties to O.S. Nos. 24/49 and 95/46 on the file of your Court, and that, in pursuance of the conspiracy, the said Md. Riazuddin at Vijayawada attempted between 11 8 1950 and 13 8 1950 to obtain a bribe from Lingam Satya Narayana Rao and his son Lingam Seetarama Rao (the 5th defendant in both the above suits).
You are hereby required within 15 days of the receipt by you of this proceeding (i) to submit a written statement of your defence and to show cause why disciplinary action should not be taken against you in respect of the above charge, and (ii) to state whether you desire an oral enquiry to be held or only to be heard in person.
" The appellant filed his written statement in answer to the charge on June 22, 1953.
Meantime, complaints had also been received by the High Court that the appellant had committed serious irregularities in the discharge of his official duties in the Sub Court, Amalapuram, such as that he had delayed delivering judgments in the suits and appeals for an unreasonable time, that he had made false returns to the District Court, and that to cover his 417 defaults, he had altered the records of the court so as to be consistent with those returns.
Charges were framed with reference to these irregularities on January 15,1953, and further charges relating to the same matter were framed on May 6, 1953, to all of which he filed his explanation on June 22, 1953.
One of the Judges of the High Court of Madras, Balakrishna Ayyar, J., was deputed to enquire into these charges, and after making an elaborate enquiry in which several witnesses including the appellant were examined, he sent a report on October 20, 1953, that the charge of corruption was made out, and he concluded as follows: " Therefore, I find the charge proved.
What punishment should be imposed on Mr. Ghouse can be decided only after he has been heard in that regard, but, at this stage, I am inclined to take the view that he should be dismissed from service.
" With reference to the charges of irregularities, etc., Balakrishna Ayyar J. submitted his report on November 10, 1953, in which also he found that the charges were all substantially established, and he concluded as follows: "In the result, I find Mr. Ghouse guilty of the charges framed to the extent already indicated.
In respect of another charge against Mr. Ghouse, that I enquired into I expressed the view that he should be dismissed from service.
In view of that no further recommendation for punishment in respect of these charges is necessary.
Certain observations, however, may not be out of order.
A judicial officer who delays judgments, in the absence of special or extenuating circumstances, furnishes evidence of his own incompetence.
But a judicial officer who systematically sends false returns is guilty of moral turpitude.
If in addition 'he instructs members of his office to make false entries in the records of the court he would be guilty of even more blameworthy conduct.
One would hardly desire to keep such persons in service.
" These reports were considered at a meeting of the Judges of the Madras High Court on January 25,1954, and they decided that "the proper punishment to be 418 awarded to the officer as regards the two counts are (1) regarding the first charge of bribery, dismissal from service and (2) regarding the second charge of various delinquencies, such as delaying judgments, etc., removal from service." Then they passed an order on January 28, 1954, placing the appellant on suspension until further orders, and the same was communicated to him on January 30, 1954.
On April 28, 1954, the appellant filed in the High Court of Madras a petition under article 226 of the Constitution, for a writ quashing the order of suspension dated January 28, 1954, on the grounds, firstly, that under the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, which had been published by the Andhra Government on October 22, 1953, with effect from October 1, 1953, enquiry into the conduct of Government servants on a monthly salary of Rs. 150 and above could be held only by a Tribunal to which the Government might refer the same, and that, therefore, the proceedings of the High Court of Madras after October 1, 1953, culminating in the order of suspension dated January 28, 1954, were without jurisdiction, and secondly, that the order in question was void, as it was in contravention of article 311 of the Constitution.
It must be mentioned that the State of Andhra had come into existence on October 1, 1953, but that the High Court of Madras continued to have jurisdiction over the Andhra State until July, 1954, when a separate High Court was established therefor.
The writ petition which was pending in the High Court of Madras was then transferred to the Andhra High Court.
At the hearing, the only contention that would appear to have been pressed by the appellant was that by reason of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, coming into force on October 1, 1953, it was only a Tribunal as provided in Rule 4 (1) (a) of those Rules that could enquire into the charges, and that the proceedings in the High Court of Madras subsequent thereto were without jurisdiction.
In rejecting this contention, the learned Judge.% observed that though Rule 4 of the Andhra Civil Services Rules differed in some respects 419 from the corresponding Rule of the Madras Civil Services Rules, 1948, the differences were of an unsubstantial character, and were due more to inexpert" drafting than to any deliberate intention to effect a change in the Madras Rules.
They further held that if the Rule in question was intended to affect the jurisdiction of the High Court to hold an enquiry into the conduct of a Subordinate judicial officer, it would be in contravention of articles 227 and 235 of the Constitution, which vested in the High Court the control and: superintendence of all the Courts in the State.
In the result, they dismissed the application.
The matter now comes before this Court in appeal under article 136 of the Constitution.
Before us, the appellant pressed both the grounds which were raised by him in his application under article 226.
On the question whether by reason of the Andhra Civil Services Rules coming into operation with effect from October 1, 1953, the High Court had ceased to have jurisdiction to proceed with the matter, it is necessary first to refer to the relevant Rules.
Rule 4 of the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules, 1948, which was the Rule in force when the enquiry against the appellant was started, runs as follows: 4." The Government may, subject to the provisions of rule 5, refer to the Tribunal: (a)Cases relating to Government servants on a monthly salary.
of Rs. 150 and above, in respect of matters involving corruption on the part of such Government servants in the discharge of their official duties.
(b)All appeals to the Government from Government servants against disciplinary orders passed by heads of departments and other competent authorities on charges of corruption, and (c)any other case or class of cases which the Government consider, should be dealt with by the Tribunal.
Provided that cases arising in the Judicial Department and against Government servants in the subordinate ranks of police forces of the rank of 420 Sub Inspector and below shall not be referred to the Tribunal.
" The corresponding Rule in the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, which came into operation from October 1, 1953, is as follows : 4 (1) " The Government shall, subject to the provisions of rule 5, refer the following cases to the Tribu nal, namely: (a) Cases relating to Government servants on a monthly salary of Rs. 150 and above in respect of matters involving corruption on the part of such Government servants in the discharge of their official duties and (b) All appeals or petitions to the Government against orders passed on charges of corruption and all disciplinary cases in which the Government propose to revise the original orders passed on such charges: Provided that it shall not be necessary to consult the Tribunal: (i) in any case in which the Tribunal has, at any previous stage, given advice in regard to the order to be passed and no fresh question has there after arisen for determination, or, (ii) where the Government propose to pass orders rejecting such appeal or petition.
(2) The Government may, subject to the provisions of rule 5, also refer to the Tribunal any other case or class of cases which, they consider should be dealt with by the Tribunal: Provided that the following cases shall not be referred to the Tribunal namely: (i) Cases arising in the Judicial Department; (ii) Cases arising against the Government servants in the subordinate ranks of the 'police forces of the rank of Sub Inspector and below, unless the cases are against them together with officers of higher ranks.
" The argument of the appellant is that whereas under the proviso to Rule 4 of the Madras Civil Services Rules, enquiries against subordinate judicial officers could not be referred to a Tribunal, under Rule 4 (1) (a) 421 of the Andhra Civil Services Rules it was obligatory on the part of the Government to refer the cases of all.
Government servants drawing a monthly salary of ' Rs. 150 and above to a Tribunal.
According to the appellant, the result of this change was that such enquiry as was held after October 1, 1953, by the High Court and all orders passed by it thereafter were bad, and that he had a right to have his case referred to and determined by the Tribunal in accordance with Rule 4 (1) (a).
There has been some argument before us as to whether the concluding proviso in Rule 4 of the Andhra Civil Services Rules qualifies both subrules (1) and (2) or only sub rule (2).
While, on the one hand, there is force in the contention of the appellant that having regard to its setting, the proviso should more properly be read as qualifying subrule (2), we are inclined to agree with the learned Judges of the High Court that, read as a whole, the Rule does not show an intention to depart from the procedure laid down in the Madras Civil Services Rules.
The point, however, is one of academic interest, as the Rule in question has subsequently been amended by G. 0.
No. 938 dated April 11, 1955, and it expressly provides that the amendment shall be deemed to have come into force on October 1, 1953.
That amendment is as follows: " In rule 4 of the said rules, the proviso occurring after sub rule (2) shall be omitted, and in lieu thereof, the following sub rule shall be inserted, namely: (3) Notwithstanding anything contained in subrule (1) or sub rule (2), the following cases shall not be referred to the Tribunal, namely: (i) cases arising in the Judicial Department; and (ii) 'cases arising against Government servants in the subordinate ranks of the Police forces of the rank of Sub Inspector and below, unless the cases are against them together with officers of higher ranks.
" By reason of this amendment, which is expressly retrospective in character, the main ground of objection on which the application of the appellant was founded, is no longer tenable.
In view of this conclusion, it becomes unnecessary.to consider the contention 422 of the respondent that Rule 4 of the Andhra Civil Services Rules could not, in any event, apply to enquiries which had been validly initiated previously thereto.
It was next contended on behalf of the appellant that as the authority which appointed him was the Governor of the Province, it was only that authority that could dismiss or remove him from service, and that the order of suspension made by the High Court on January 28, 1954, was in contravention of article 311 of the Constitution, and was, in consequence, bad.
This contention does not appear to have been pressed in the High Court, and is, moreover, without substance.
The facts are that Balakrishna Ayyar J. sent his report on the enquiry into the charges against the appellant, and expressed his opinion that he should be dismissed or removed from service.
The High Court approved of it, and passed an order on January 28, 1954, suspending him until further orders.
The report was then sent to the Government for action, and, in fact, the Andhra Government has issued a notice to the appellant on August 12, 1954, to show cause why he should not be dismissed or removed from service.
Thus, it is the appropriate authority under article 311 that proposes to take action against the appellant, and it is for that authority to pass the ultimate order in the matter.
The order passed by the High Court on January 28, 1954, is merely one of suspension pending final orders by the Government, and such an order is neither one of dismissal nor of removal from service within article 311 of the Constitution.
It was also argued that the High Court had no authority under the rules to suspend a judicial officer pending final orders of the Government.
But under Rule 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, it is the High Court of Judicature at Madras that is constituted as the authority which may impose suspension pending enquiry into grave charges under rule 17(e) against the Members of the State Judicial Service.
The order in question, therefore, falls within this rule, and is perfectly intra vires.
423 It was lastly contended for the appellant that even if the High Court could hold a preliminary enquiry into the conduct of a judicial officer, it had no jurisdiction to decide the matter finally, that the findings given by Balakrishna Ayyar J. should not be held to conclude the question against the appellant, and that the Government was bound to hold a fresh enquiry and decide for itself whether the charges were well founded.
No such question was raised in the petition or in the High Court, and we must, therefore, decline to entertain it.
In the result, the appeal is dismissed with costs.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was at the relevant dates posted as Subordinate Judge at Masulipatam and Amalapuram.
Charges were made against him of bribery and serious irregularities in the discharge of official duties, and they were enquired into by one of the judges of the Madras High Court who sent his reports on August 2o, ,953, and November Io, 953.
On the basis of the reports the High Court decided on January 25, 1954, that the appellant should be dismissed from service on the charge of bribery and removed from service on the charge of irregularities, and on January 28, 1954, placed him on suspension until further orders.
The appellant moved the High Court under article 226 of the Con stitution of India for quashing the order of suspension on the ground (1) that under r. 4(I)(a) of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, an enquiry into the 415 conduct of a Government servant drawing a monthly salary of Rs. 15o and above could be made only by a Tribunal to be appointed by the Government, and that as the rule came into, effect from October 1, 1953, the order of the Madras High Court dated January 28, 1954, was without jurisdiction, and (2) that the order was repugnant to article 31I of the Constitution of India.
The High Court dismissed the application and on appeal against the judgment.
Held:(1) that in view of the amendment of r. 4 Of the Andhra Civil Services (Disciplinary Proceedings Tribunal) Rules, 1953, on April II, 955, excluding, with retrospective effect, the jurisdiction of the Tribunal in respect of enquiries into the conduct of the judicial officers, the order of the Madras High Court dated January 28, 1954, was not open to attack.
(2)that an order of suspension pending final orders is neither one of dismissal nor of removal of service within article 311 of the Constitution.
(3)that under r. 13 of the Madras Civil Services (Classification, Control and Appeal) Rules, the High Court had the power to impose suspension pending enquiry into grave charges under r. 17(e) against the Members of the State judicial Service.


judgement:
: Criminal Appeal No. 44 of 1976.
Appeal by Special leave from the judgment and order dated the 5th January, 1973 of the Kerala High Court in Criminal Revision Petition No. 426 of 1972.
227 G.S. Narain and Miss A. Subhashini for the Appellant.
M.M. Abdul Khader and E.M.S. Anam for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The Assistant Collector of Central Excise, Calicut has filed this appeal after obtaining the special leave of this Court against the judgment and order dated January 5, 1973 of the High Court of Kerala in Criminal Revision Petition No. 426 of 1972.
Briefly stated, the facts of the case are these: In the early hours of August 9, 1969 the respondent alighted from the Kerala Express at the Trichur Railway Station with a steel trunk in his hand.
C.C. Mathan, Inspector of Central Excise Special, Customs, Preventive, Trichur (P.W. 1) who was on patrol duty at the Railway Station suspected that the respondent was carrying contraband goods and on coming to know from the Ticket Examiner that the respondent had arrived from Bombay he asked the respondent to hand over the steel trunk which he was carrying.
When C.C. Mathan (P.W. 1) opened and searched the steel trunk, he found in it 28 gold bars with foreign markings.
The respondent was arrested by C.C. Mathan (P.W. 1) and when questioned by P.W. 1, the respondent did not produce any authorisation entitling him to keep the 28 gold bars in question which were valued at Rs. 56,030/ .
A mahazar (Exh. P.1) was prepared for having seized the 28 gold bars.
A sum of Rs. 1,380/ which was found in the steel trunk was also seized.
Later on, it is stated, that the 28 gold bars in question were confiscated in a proceeding under section 111(d) of the Costoms Act, 1962 read with section 23 A of the Foreign Exchange Regulation Act, 1947 before the Additional Collector of Customs, Cochin.
The steel trunk also was confiscated under section 119 of the .
A penalty of Rs. 500/ was imposed on the respondent under section 112(b) of the .
The amount of Rs. 1380/ which had been seized from the respondent was, however, ordered to be returned to him.
Thereafter the Assistant Collector of Customs and Central Excise, Kozhikode after obtaining the required sanction under section 137(1) of the and section 97(1) of the Gold (Control) Act, 1968 from the Additional Collector of Customs, Cochin and the Collector of Customs and Central Excise, Cochin respectively filed a complaint before the District Magistrate (Judicial), 228 Tellicherry against the respondent for offences punishable under section 135(b) of the read with section 85(ii) of the Gold (Control) Act, 1968.
In support of the said prosecution four witnesses were examined by the complainant.
C.C. Mathan, P.W.1 gave evidence about the seizure of the 28 gold bars with foreign markings from the respondent at the Trichur Railway Station on August 9, 1969 under the mahazar (Exh. P.1).
He also produced Exh.
P.2 which contained the statement made by the respondent before the Special Customs Preventive Circle Superintendent, Kozhikode in which he had admitted that 28 gold bars with foreign markings had been seized from him under a mahazar and that the said 28 gold bars had not been legally imported to India.
C.C. Mathan (P.W. 1) stated that he was present before the Special Customs Preventive Circle Superintendent, Kozhikode when Exh.
P.2 was recorded and that the said statement contained the signatures of the respondent and of the Superintendent who had recorded it.
K. Subramonian (P.W. 2) who was working as a Ticket Collector at Trichur Railway Station stated that the 28 gold bars in question were seized on August 9,1969 at the Trichur Railway Station under the mahazar (Exh. P.1) which he had signed.
V.M. Velayudhan (P.W.3) who was a resident of Trichur and a goldsmith by profession stated that the 28 gold bars in question had been examined and weighed by him at the Trichur Railway Station at the request of C.C. Mathan (P.W.1).
He further stated that he tested the purity of the said 28 gold bars by rubbing them on the touch stone and found that they were gold bars of 24 carats quality.
He gave a certificate (Exh. P.3) regarding the purity and the weight of the 28 gold bars.
V.M. Velayudhan (P.W.3) who was a certified goldsmith further stated that he could by experience assess the purity of gold by rubbing it on a touch stone.
He, however, stated that he had no technical knowledge about gold and he did not know the 'specific gravity ' method by which the purity of gold could be determined.
The Assistant Collector of Central Excise (P.W.4) was examined to prove the sanctions given by the competent authorities to file the case.
In his examination under section 342 of Criminal Procedure Code in answer to the following question put by the Court: 'What have you to say about the deposition of P.W.1 that you on 9th August, 1969 at 7 O 'clock in the moring alighted from train at Trichur Railway Station with a steel trunk and that P.W.1 on searching the box due to suspicion, found out 28 gold bars having foreign marks ? ' the respondent stated 'It is true that gold was 229 recovered from my box.
It was not mine.
It was handed over to me by the person called Mammu asking me to give it in his house.
I had no knowledge that it was gold. ' The learned District Magistrate found that the prosecution had established that the respondent had committed an offence under section 135(b) of the and an offence under section 85 (ii) of the Gold (Control) Act, 1968 and convicted him of those offences.
The respondent was sentenced to pay a fine of Rs. 500/ for the offence under section 135(b) of the Costoms Act and in default of payment of fine to undergo simple imprisonment for six months.
No separate sentence was, however, awarded for the offence under section 85(ii) of the Gold (Control) Act.
The respondent preferred an appeal against the judgment of the learned District Magistrate before the Sessions Judge, Trichur and that appeal was dismissed.
The respondent filed a revision petition before the High Court of Kerala against the decision of the learned Sessions Judge: The learned Judge of the High Court who heard the revision petition allowed it and set aside the conviction of the respondent and the sentence imposed on him on the ground that the prosecution had not established that the metallic bars which were seized from the respondent under Exh.
P.1 were gold bars and, therefore, the conviction of the appellant could not be sustained.
The learned Judge found that the evidence of V.M. Velayudhan (P.W.3) who was examined in the case, the statement Exh.
P.2 made by the respondent before the Special Customs Preventive Circle Superintendent, Kozhikode and the answer given by the respondent under section 342 of the Criminal Procedure Code taken together were not sufficient to hold that the gold bars had been seized from the respondent under Exh.
He rejected the evidence of V.M. Velayudhan (P.W.3) on the ground that he had not that raining or the qualification in the art of testing gold and that he had not conducted either the furnace test or the specific gravity test to determine the character of the metallic bars.
He was of the opinion that V.M. Velayudhan (P.W.3) had miserably failed in the witness box to give the impression that he was a competent person to certify that what were seized from the respondent were gold bars and that in the absence of any training or qualification to the credit of V.M. Velayudhan (P.W.3), it would be unsafe to rely on his evidence and conclude that what was seized from the respondent was gold.
So far as Exh.
P.2 was concerned the learned Judge was of the opinion that as the said statement had not been specifically put to the respondent under section 342 of the Criminal Procedure Code and as the person who had recorded it had not been 230 examined, no importance could be given to it.
In so far as the answer given by the respondent to the question put by the Court under section 342 of the Code of Criminal Procedure which is set out above is concerned, the learned Judge observed that even assuming that it would have some value the prosecution could not seek to split that statement into various parts and rely on what it considered to be advantageous to establish its case.
Accordingly the learned Judge acquitted the accused.
The principal point which arises for consideration in this case is whether the prosecution had established that smuggled gold bars had been seized from the respondent on August 9, 1969 at the Trichur Railway Station under Exh.
It is true that the onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused.
An accused cannot be convicted of an offence on the basis of conjectures or suspicions.
If a reasonable doubt arises in the mind of the Court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should be given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the evidence '.
"Hence a mere whim or a surmise or suspicion furnishes an insufficient foundation upon which to raise a reasonable doubt, and so a vague conjecture, whimsical or vague doubt, a capricious and speculative doubt, an arbitrary, imaginary, fanciful, uncertain chimerical, trivial, indefinite or a mere possible doubt is not a reasonable doubt.
Neither is a desire for more evidence of guilt, a capricious doubt or misgiving suggested by an ingenious counsel or arising from a merciful disposition or kindly feeling towards a prisoner, or from sympathy for him or his family" (See Woodroffe & Ameer Ali 's Law of Evidence, 13th Edn.
203 204).
On a reading of the evidence of C.C. Mathan (P.W.1), V.M. Velayudhan (P.W.3) and the statement of the respondent under section 342 of the Criminal Procedure Code which is referred to above, we are of the view that the doubt which the learned Judge of the High Court entertained about the nature of the metallic bars which were seized from the respondent under Exh. 1 cannot be considered to be a reasonable doubt.
It is well known that persons who are goldsmiths by profession are able to find out 231 whether a piece of metal is gold or not by the colour of the streak produced by rubbing it on a touch stone used by them even though their assessment of its purity may not be exact.
It may not be a scientific way of proving that the metallic bars were gold bars.
In the instant case, however, the respondent did not dispute that gold had been recovered from his box under Exh.
His plea was that it was true that gold was recovered from his box but that it did not belong to him; that it had been handed over by a person called Mammu asking him to give it in his house and that he had no knowledge that it was gold when the packet containing it was handed over to him.
Reading the answer of the accused as a whole it means that he knew that when his steel trunk was opened and searched, there was gold in it but he had no knowledge that the packet contained gold when it was handed over to him by Mammu asking him to hand it over in his house.
The answer consists of two parts and they refer to two distinct matters.
The first part relates to seizure of gold from him and the latter part relates to what had happened earlier when the packet was handed over to him.
The case might have been different if he had said that no gold was recovered from his box.
The High Court, therefore, erred in holding that the statement of the respondent that the gold was seized from him could not be used against him on the ground that it would result in the splitting up of the statement which was on the whole exculpatory.
Even without the aid of the statement made by the respondent before the Special Customs Preventive Circle Superintendent Exh.
P.2, it is possible to hold in this case that the metallic bars seized from the respondent under Exh.
P.1 were gold bars in view of the evidence of P.Ws. 1, 2 and 3 and the statement of the respondent before the Court.
The High Court was in error in coming to the conclusion that gold had not been seized from the respondent by P.W.1 as per Exh.
P.1 at the Trichur Railway Station.
These gold bars were seized by P.W.1 in the reasonable belief that they were smuggled goods.
Under section 123 of the , in such circumstances, the burden of proving that they were not smuggled goods would be on the respondent from whose possession they were seized.
In the instant case, the respondent had not discharged the burden which lay on him.
P.W.1 has stated that the said gold bars had foreign markings on them and Exh.
P.1, the mahazar corroborated his statement.
The respondent had no authorisation to keep the said gold with him.
It is in evidence that the said gold bars were found packed in paper and kept in the inside folds of a blanket underneath 232 some clothes in the trunk seized from the respondent.
He had taken care to secrete them.
He had brought them from Bombay which was a customs area.
In the circumstances his explanation that he had no knowledge that he was in possession of or carrying smuggled gold bars cannot be believed, as rightly held by the learned Sessions Judge.
The prosecution has clearly established the guilt of the respondent.
The judgment of the High Court is, therefore, liable to be set aside and it is accordingly set aside.
The conviction of the respondent and the sentence imposed on him by the learned District Magistrate which were affirmed on appeal by the learned Sessions Judge are restored.
The appeal is accordingly allowed.
H.L.C. Appeal allowed.

summary/full:
The respondent was charged under section 135 (b) of the read with section 85 (ii) of the Gold (Control) Act, 1968.
The case against him was supported inter alia by the oral evidence of the Inspector who had seized 28 gold bars from him at a railway station, the ticket collector on duty at the time of seizure and the goldsmith who had certified the purity and weight of the gold bars seized.
The goldsmith had deposed that he could by experience assess the purity of gold by rubbing it on a touch stone.
The documentary evidence included a statement made by the respondent before the Customs Superintendent admitting that the gold bars had been seized from him and that the same had not been legally imported.
That the respondent had made this statement of admission had been affirmed by the Inspector in his deposition.
In his examination under section 342 Cr.
P.C., when the respondent was asked what he had to say regarding the deposition of the Inspector, he stated: It is true that gold was recovered from my box.
It was not mine.
It was handed over to me by the person called Mammu asking me to give it in his house.
I had no knowledge that it was gold.
" The respondent was convicted and sentenced by the District Magistrate.
After his appeal against the same was rejected by the Sessions Judge the respondent filed a revision petition which was allowed by the High Court on the ground that the prosecution had failed to establish that the metallic bars seized from the respondent were gold bars.
The High Court rejected the evidence of the goldsmith on the ground that he did neither have the training nor the qualification in the art of testing gold and that he had not conducted either the furnance test or the specific gravity test to determine the character of the metallic bars.
According to it, the goldsmith had miserably failed in the witness box to give the impression that he was a competent person to certify that what were seized from the respondent were gold bars.
The High Court was of the view that no importance could be given to the respondent 's statement of admission before the Customs Superintendent as the same had not been put to him under s, 342, 226 Cr.
P.C. and the person who recorded it had also not been examined.
In so far as the answer given by the respondent to the question put by the court under section 342, Cr.
P.C. the High Court observed that even assuming that it would have some value, the prosecution could not seek to split the same into various parts and rely on what it considered to be advantageous to establish its case.
Allowing the appeal against acquittal, ^ HELD: The onus of proving the facts essential to the establishment of the charge against an accused lies upon the prosecution and the evidence must be such as to exclude every reasonable doubt about the guilt of the accused.
If a reasonable doubt arises in the mind of the court after taking into consideration the entire material before it regarding the complicity of the accused the benefit of such doubt should be given to the accused but the reasonable doubt should be a real and substantial one and a 'well founded actual doubt arising out of the evidence existing after consideration of all the evidence '.
[230 C E] Woodroffe & Ameer Ali 's Law of Evidence, 13th ed.
I, pp.
203 204, referred to.
In the instant case the doubt entertained by the High Court about the nature of the metallic bars cannot be considered to be a reasonable doubt.
It is well known that persons who are goldsmiths by profession are able to find out whether a piece of metal is gold or not by the colour of the streak produced by rubbing it on a touch stone used by them even though their assessment of its purity may not be exact.
Further, the respondent did not dispute that gold had been recovered from his box.
Reading his answer to the question put under section 342, Cr.
P.C. as a whole, it means that he knew that when his steel trunk was opened and searched there was gold in it but he had no knowledge that the packet contained gold when it was handed over to him by Mammu.
The High Court erred in holding that the statement of the respondent that the gold was seized from him could not be used against him on the ground that it would result in the splitting up of the statement which was on the whole exculpatory.
[230 H. 231 A E] In this case even without the aid of the statement made by the respondent before the Customs Superintendent it is possible to hold that the metallic bars seized from the respondent were gold bars in view of the evidence of the Inspector, the ticket collector and the goldsmith and the statement of the respondent before the Court.
Further, in the circumstances in which the gold bars had been seized from the respondent, the burden of proving that they were not smuggled goods was on respondent under section 123 of the .
[231 E G]


judgement:
N: Criminal Appeal No. 401 of 1976.
Appeal by Special leave from the Judgment and Order dated the 26th September, 1976 of the Gauhati High Court in Criminal Appeal No. 18 of 1975.
S.K. Nandy and Krishna Prasad for the Appellant.
D. Goburdhan for the Respondent.
The Judgment of the Court was delivered by MISRA, J.
The present appeal by special leave has been filed by the State of Assam against the judgment of the Gauhati High 243 Court dated 25th of September, 1975 whereby it set aside the conviction of the respondent Mafizuddin Ahmed and acquitted him of the charge of murder.
The prosecution case as unfolded in the first information report and the evidence is that the respondent Mafizuddin Ahmed was a sub Inspector of Police posted at Gauhati.
His wife and children lived at his village home at Bholagaon within the Palashbari Police Station.
The respondent had first married Jaygun Bibi and had one son and two daughters from her.
Later on he married another lady Smt.
Lal Bari and thereafter he started maltreating Jaygun Bibi.
On 10th of April 1973 he went to his village home and at about 2 p.m. he poured kerosene oil on his wife Jaygun Bibi and set fire to her body with the help of a match box.
When she screamed the accused gagged her mouth and then wrapped her with a quilt and threw her on the floor.
In so doing the respondent himself received some burn injuries on his hands.
The village people hearing the cries came there and they took Jaygun Bibi as well as the respondent accused to the Gauhati Medical College Hospital where they were admitted for treatment.
Alimuddin Ahmed was the uncle of Jaygun Bibi and lived at a distance of 6 miles from the house of the respondent.
He received a news that the house of the respondent had burnt and that Mafizuddin and Jaygun Bibi had sustained burn injuries.
A few days thereafter Alimuddin Ahmed 's brother developed tetanus.
He got him admitted in the Isolation Hospital at Kalapahar, Gauhati.
From there he went to Gauhati Medical College Hospital on 18th April, 1973 to see how Jaygun Bibi was faring.
He met Jaygun Bibi and asked her how it happened and then she told that her husband had poured kerosene oil on her body and set fire.
He, thereupon went to the Sadar Police Station and made a report (exhibit 3).
On receipt of the report police arranged for recording the dying declaration of Jaygun Bibi by a Magistrate as her condition was considered precarious.
Shri A.C. Bhuyan (PW 2) recorded the dying declaration of Jaygun Bibi.
Eventually Jaygun Bibi succumbed to her injuries on that very day.
The accused pleaded not guilty to the charge.
His plea was one of denial.
He, however, admitted that on 10th of April, 1973 his wife received serious burn injuries and later died as a result of her injuries at the Gauhati Medical College Hospital.
His case was that on 10th April, 1973 his house at Bholagaon caught fire and at that 244 time his wife wearing garments also accidently caught fire.
Having seen this he tried to extinguish the fire on her body by covering her with a quilt and in doing so he himself received some burn injuries.
He flately denied that he poured kerosene oil on her body and then set fire as alleged.
The only eye witness in the case is Mantaz Ali the son of the deceased Jaygun Bibi and the accused respondent.
He was of only 5 years and odd at the time of occurrence and of 7 years and odd at the time of his deposition.
The other material evidence relied upon by the prosecution are the two dying declarations, one being oral made to Alimuddin Ahmed, the uncle, and the other being written dying declaration recorded by the Magistrate Shri A.C. Bhuyan, PW 2.
The Sessions Judge on a consideration of the evidence adduced by the prosecution found that the charge under section 302 IPC was fully brought home to the accused and accordingly convicted him thereunder and sentenced him to life imprisonment.
On appeal, the High Court set aside the order of conviction and acquitted the respondent of the charge.
The State of Assam has, as stated earlier, filed the above appeal by obtaining a special leave.
The contention raised before the High Court on behalf of the respondent was that the evidence was too meagre and unreliable to sustain the conviction and the learned Sessions Judge failed to properly appreciate the same.
The evidence which has been relied upon by the Sessions Judge for convicting the respondent was the evidence of the eye witness Mantaz Ali, the child witness, and the two dying declarations, one oral and the other written for convicting the respondent.
The High Court, however, did not find it safe to convict the respondent on the basis of dying declaration and the statement of PW 7.
It has been contended for the State of Assam that the conviction could be based upon the dying declaration even if there is no other corroborating evidence on the record and reference was made to Tarachand Damu Sutar vs The State of Maharashtra(1) and Maniappan vs The State of Madras.(2) Mr. Goverdhan, counsel for the respondent accused, on the other hand contends that the dying 245 declaration alone without corroboration cannot be made the basis of convicting the respondent and referred to Madhoprasad vs The State of Madhya Pradesh(1).
This Court has consistently taken the view that conviction can be based upon the dying declaration alone.
In Maniappan 's case (supra) the dying declaration was a completed statement which was categorical in character and there was nothing to show that the victim had anything more to say.
This Court held that the dying declaration needed no corroboration and could be relied upon.
In Khushal Rao vs State of Bombay(2) this Court held : ". in our opinion, there is no absolute rule of law, or even a rule of prudence which has ripened into a rule of law, that a dying declaration unless corroborated by other independent evidence, is not fit to be acted upon, and made the basis of a conviction." The Court referred to the following observation made in Madho Prasad 's case (supra) : "It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration.
It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered." and observed that they were in the nature of obiter dicta.
In Lallubhai Devechand Shah & Ors.
vs State of Gujarat(3) dealing with a dying declaration this Court laid down : "The law with regard to dying declarations is very clear.
A dying declaration must be closely scrutinised as to its truthfulness like any other important piece of 246 evidence in the light of the surrounding facts and circumstances of the case, bearing in mind on the one hand, that the statement is by a person who has not been examined in court on oath and, on the other hand, that the dying man is normally not likely to implicate innocent person falsely." Thus, the law is now well settled that there can be conviction on the basis of dying declaration and it is not at all necessary to have a corroboration provided the Court is satisfied that the dying declaration is a truthful dying declaration and not vitiated in any other manner.
We, therefore, find considerable force in the contention of the counsel for the State of Assam that there can be a conviction on the basis of dying declaration even in the absence of other corroborating evidence but before doing so, the Court has to be satisfied about the truthfulness of the dying declaration.
In the instant case, the occurrence took place on the 10th of April, 1973.
The deceased was alive upto 18th of April 1973.
She did not disclose earlier to anyone she met in the hospital that her husband sprinkled kerosene oil and set her on fire.
She met so many people after the occurrence she met the village people who appeared on the scene just after the occurrence and who took her to hospital.
She did not disclose the story to the doctor or the nurse attending on her.
There is no evidence of the doctor on the record that she was not in a position to speak or that she had become unconscious between 10th of April and 18th of April.
It is only when her uncle met her on the 18th of April that she made an oral dying declaration to him and later to the Magistrate who recorded her statement.
This throws doubt on the dying declaration made by Jaygun Bibi and this circumstance weighed with the High Court in discarding the dying declaration of the deceased.
The High Court discarded the dying declaration on yet another ground that the name of the husband of the deceased given in the dying declaration was Mohsin Ali not Mafizuddin Ahmed and, therefore, the identity of the lady Jaygun Bibi was itself doubtful.
Dr. Ramananda Das, Registrar of the Surgical Unit No. 1 of the Gauhati Medical College Hospital, PW 6, in whose presence the statement was recorded, has not stated that the declarant was Jaygun Bibi.
He has simply stated that the Magistrate recorded the statement of a patient of his unit who received burn injuries.
247 Further, the Magistrate, Shri A.C. Bhuyan, who recorded the dying declaration of the Jaygun Bibi stated that the daroga and a constable were present nearby when the statement was recorded.
Coupled with these in the absence of the thumb impression of the deceased on the declaration.
The cumulative effect of all the circumstances which weighed with the High Court is that they cast doubt about the truthfulness of the dying declaration.
It is not outside the realm of probability that her statement may have been inspired by her uncle and, therefore, it will not be safe to base the conviction of respondent on such a dying declaration.
The other direct evidence is the deposition of PW 7, the son of the deceased, a lad of 7 years.
The High Court has observed in its judgment : ". the evidence of a child witness is always dangerous unless it is available immediately after the occurrence and before there were any possibility of coaching and tutoring." A bare perusal of the deposition of PW 7 convinces us that he was vacillating throughout and has deposed as he was asked to depose either by his nana or by his own uncle.
It is true that we cannot expect much consistency in the deposition of this witness who was only a lad of 7 years.
But from the tenor of his deposition it is evident that he was not a free agent and has been tutored at all stages by someone or the other.
He had told the police that he was in the mango grove at the time of occurrence.
If this be a fact then he could not be an eye witness of the occurrence but when he came to depose before the Court he said : "Ahmed is my father 's brother.
He was not at home at the time of the occurrence.
He came later.
He taught me to tell police that I had been in the mango grove at the time of occurrence.
That is why I told police so.
Later, in company with my maternal grand father, Alimuddin I said what I had seen." Again, the first thing that he uttered when the house caught fire is "Gharat Jui Lagil" (the house has caught fire).
This statement is 248 more in consonance with the defence theory.
His mother was more important for him and if it was a fact that his father had set fire to his mother by sprinkling kerosene oil to which he was a witness he would not have omitted to say so.
In the next breath he deposed that his father poured scented oil on his mother 's body and not kerosene oil.
The fact that he was tutored is fully borne out by his own statement, as will be clear from the following portion of his deposition: " "Nana" accompanied me when I came to depose in the lower court, but stayed outside.
I stated in that court that I had stated what "Nana" asked me to.
The day before I came to depose, I had told "Nana" what I would say.
" It is also clear from the materials on the record that on the advice of the police Alimuddin Ahmed, the nana of PW 7 applied for his custody during the enquiry proceedings but the Magistrate instead of giving custody to the nana gave the custody of PW 7 to his nani, who was no other than the wife of Alimuddin.
So to all intents and purposes the custody of the boy remained with Alimuddin Ahmed, the nana.
Indeed, he took the boy for giving evidence in court.
P.W. 7 was in the full control of the nana and deposed as he was asked to depose.
In this setting the observation made by the High Court is fully justified.
There are two other circumstances which also cannot be lost sight of.
Covering the burning body of the Jaygun Bibi with quilt will help in extinguishing the fire.
That will stop the passing of oxygen to the fire and the fire will automatically extinguish.
The further fact that in so doing the husband also got burns on his hands goes a long way to support the defence version.
For the reasons given above the appeal must fail.
It is accordingly dismissed.
P.B.R. Appeal dismissed.

summary/full:
The prosecution case against the respondent was that after marrying for a second time he started ill treating his first wife, the deceased, and that on the day of the occurrence (10th April, 1983) he poured kerosene oil on her and set fire to her body.
When the deceased started screaming he gagged her and wrapped her with a quilt and threw her on the floor and in the process he himself received burn injuries on his hands.
A week later on the 18th April, 1973 when the uncle of the deceased called on her at the hospital and enquired as to how it happened, she told him that her husband poured kerosene oil and set fire to her body.
He then reported the matter to the police.
Since her condition was precarious, a Magistrate recorded her dying declaration.
The respondent 's case on the other hand was that on the day of the occurrence when his wife 's garments accidentally caught fire when his house caught fire he attempted to extinguish the fire by covering her with a quilt and in the process he himself had received burn injuries.
Believing the evidence of the son of the deceased, a boy of 7 years, and the dying declarations made to her uncle and the Magistrate, the Sessions Judge held that the charge under section 302 I.P.C. was established.
But the High Court did not find it safe to convict him on the basis of the dying declarations and the statement of the child witness and acquitted him of the charge.
In appeal to this Court, it was contended on behalf of the State that even if there was no evidence on record to corroborate the dying declarations the respondent 's conviction could be based on the dying declaration.
Dismissing the appeal, ^ HELD: It is well settled that, even in the absence of other corroborating evidence, there can be a conviction on the basis of a dying declaration provided that the Court is satisfied about the truthfulness of the dying declaration and that it is not vitiated in any other manner.
[246 B C] 242 Maniappan vs The State of Madras, ; , Khushal Rao vs State of Bombay, ; , and Lallubhai Devechand Shah & Ors.
vs State of Gujarat, A.I.R. referred to.
In the instant case even though the occurrence took place on 10th April and the deceased was alive till 18th April, she did not disclose either to the villagers who visited her or to the doctor or the nurse attending on her that her husband sprinkled kerosene oil and set her on fire.
There was no evidence that she was not in a position to speak or that she was unconscious between 10th April and 18th April.
It was only on the 18th April that she made an or dying declaration for the first time to her uncle and later to the Magistrate.
And secondly the name of the husband of the deceased in the dying declaration was shown as Mohain Ali and not the real name Mafijuddin Ahmed.
The doctor, in whose presence the dying declaration was recorded, did not state that the declarant was the deceased; he only stated that the Magistrate recorded the statement of a patient of his unit who had received the burn injury.
Therefore the probability of her statement being inspired by her uncle cannot be weeded out.
The aforesaid circumstances do cast doubt on the truthfulness of the dying declaration.
[246 D H, 247 A C] From the tenor of the evidence of the son of the deceased, a boy of about 7 years, it is evident that he was vacillating throughout and that he was not a free agent but he had been tutored.
He said that he was in the mango grove at the time of the occurrence; that his uncle taught him to tell the police that he was in the grove at the time of occurrence; that it was the house that caught fire first; that his father poured kerosene oil on his mother and set fire to her.
He also said that his father poured sented oil on his mother 's body and not kerosene oil.
On the application of Alimuddin Ahmed the son of the accused was kept in the custody of his wife and thus to all intents and purposes the custody of the boy remained with the uncle of the deceased and his wife.
[247 E H, 248 A, D E] The fact that the respondent covered the deceased with quilt to extinguish the fire and in the process had himself got burn injuries on his hands also lend support to the defence version.
[248F]