judgement:
iminal Appeal No. 95 of 1961.
Appeal by special leave from the judgment and order dated February 15, 1961, of the Allahabad High Court in Criminal Appeal No. 1597 of 1960.
D. section Tewatia and K. B. Mehta, for the appellants.
O. P. Rana and C. P. Lal, for the respondents.
August 29, 1963.
The judgment of the Court was delivered by HIDAYATULLAH J.
This is an appeal by special leave against the judgment of the High Court of Allahabad in Criminal Appeal No. 1597 of 1960 decided on February 15, 1961.
The appellants are eight in number and they have been convicted under section 325 read with section 149 of the Indian Penal Code and sentenced to three years rigorous imprisonment.
They have also been convicted variously under sections 147 & 148, Indian Penal Code and sentenced to smaller terms of imprisonment which need not be mentioned as those sentences are made to run concurrently with the above sentence.
They were originally charged under section 302 read with section 149, Indian Penal Code for the murder of one Tikam on January 24, 1960 at about noon in village Nandgaon Police Station Barsana District Mathura.
The Session Judge, Mathura, did not think that a case of murder was made out and convicted them of the lesser offence.
Their appeal to the High Court was dismis sed and the conviction and sentences were maintained.
There was yet another trial at which these eight persons and four others were tried under section 307/149, Indian Penal Code for causing hurt to one Puran with such intention and under such circumstances that if by that act they had caused his death they would have been guilty of murder and also under sections 147 & 148 of the Penal Code for being members of an unlawful assembly, the common object of which was an attempt on Puran 's life.
The learned Sessions judge, Mathura held in the second case that the injuries sustained by Puran warranted an 675 offence under section 323, Indian Penal Code.
The accused and Puran compounded that offence and all the accused were acquitted.
The Sessions judge, however, convicted 11 out of 12 accused under sections 147 & 148, Indian Penal Code and awarded different sentences, according to the weapons possessed by them.
One Koka was acquitted because his plea that he was blind from birth was accepted.
The 11 accused in the second case appealed to the High Court and were acquitted of the charge of being members of an unlawful assembly.
That Judgment of the High Court was delivered on January 31, 1961, in Criminal Appeal No. 1598 of 1960, fifteen days before the confirmation of the conviction and sentences of the eight appellants in this appeal.
The facts of the case may now be given.
There was enmity between Tikam (deceased) and the appellants and on January 24, 1960, just about noon time Tikam was sitting at the shop of a blacksmith in village Nandgaon.
Dulli and Nathi who were examined as P. Ws. 2 & 3 were sitting near him.
The appellants who were armed with Ballams, a Pharsa and Lathis arrived on the spot and on seeing Tikam started to assault him.
Tikam was severely injured and fell in a ditch adjacent to the road but even after he fell in it the assault was continued by the appellants.
He died the same day about five hours later.
After assaulting Tikam, these appellants decided to ransack his house and started towards it.
On the way they were met by the other four accused and this brought their number to twelve.
While they were going to the house of Tikam they saw Puran and decided to beat him.
Puran was assaulted and the second case arose out of the assault on him.
The learned magistrate who committed the accused to stand their trial before the Court of Sessions framed a common charge in respect of the two incidents but the Sessions judge amended the charge and divided it into two charges namely one connected with the attack on Tikam and the other connected with the attack on Puran.
, He also separated the two trials on the two charges.
As stated already lie convicted the eight appellants in respect of their assault on Tikam and the same appellants with three others in respect of their assault on Puran.
676 The appeal in the second case was heard first and was allowed by the High Court and the 11 appellants in that appeal including the eight before us were ordered to be acquitted.
It was contended before us by Mr. Tewatia that Mr. Justice Sharma who delivered the judgment impugned before us did not allow the appellants a chance to reply to the arguments on behalf of the State and thus denied them a fair hearing.
This fact was mentioned in the petition for certificate in the High Court and has been repeated in the petition for special leave.
Mr. Justice Sharma had proceeded to deliver judgment as soon as the arguments were over and the judgment was delivered by him on two consecutive days in the presence of the appellants and their counsel.
If any such right had been denied to the appellants they should have brought the matter immediately to the notice of the learned Judge and he would have rectified it.
It appears that the appellants were hoping for an acquittal in view of the prior acquittal by the learned judge in the companion case and realised too late that their appeal was not accepted.
It is for this reason that they do not appear to have raised this issue before the learned Judge when they asked him to certify the appeal and his Order does not show that they made a grievance that the hearing was not fair.
In our opinion this point cannot be considered because though.
it was mentioned in the petition for certificate it was apparently not pressed before Mr. Justice Sharma.
The next contention of the appellants is that the prior acquittal in the second case operates as a bar to the conviction in the present case and the High Court ought to have given the appellants the benefit of the prior ac quittal.
Reliance in this connection is placed upon a de cision of the Privy Council in a case from Malaya State reported in Sambasivam vs Public Prosecutor/Federation of Malaya(1) and particularly the following passage from the judgment of Lord Mac Dermott: "The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence.
at p. 479.
677 To that is must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.
The maximum "Res judicata pro veritate accipitur" is no less applicable to criminal than to civil proceedings.
Here, the appellant having been acquitted at the first trial on the charge of having ammunition in his possession, the prosecution was bound to accept the correctness of that verdict and wasprecluded from taking anystep to challenge it at the second trial.
And the ap pellant was no less entitled to rely on his acquittal in so far as it might be relevant in his defence.
That it was not conclusive of his innocence on the firearm charge is plain, but it undoubtedly reduced in some degree the weight of the case against him, for at the first trial the facts proved in support of one charge were clearly relevant to the other having regard to the circumstances in which the ammunition and revolver were found and the fact that they fitted each other.
" The above passage was cited with approval by this Court in Pritam Singh vs State of Punjab(1).
The two cited cases were considered and distinguished by this Court in Mohinder Singh vs State of Punjab(2) and Pritam Singh 's case was again distinguished in Gurcharen Singh & anr.
vs State of Punjab(1).
As pointed out in Mohinder Singh vs State of Punjab(2), the case of the Privy Council involved a confession by an accused in which he admited possession of a firearm and some ammunition which were both offences under the relative law of Malaya State.
He was convicted on the basis of that statement on two counts but on appeal was acquitted in respect of the count relating to the possession of ammunition and a fresh trial was ordered in respect of the count relating to the possession of the firearm.
In the second trial the confession was again relied upon and he was convicted.
The Privy Council set aside the conviction because the confession was incapable of being divided into two parts so as to make separate confessions about the (1) A.I.R. 1956 S.C. 415.
(2) Cr. A. No. 140 of 1961, decided on 31 7 63 (Unreported).
(3) 678 possession of firearm and about the possession of am munition.
Their Lordships held that the confession which was indivisible could not be used at all, in view of the acquittal recorded earlier on the other count.
In Pritam Singh 's case(1) the accused made a statement leading to the recovery of a firearm with which he was alleged to have shot one of the victims.
He was prosecuted for possession of the firearm and was acquitted but the evidence of the possession of the firearm was used in the murder charge.
This was held to be not permissible.
As explained in Mohinder Singh 's case(2), the acquittal in respect of the possession of firearm affected the admissibility of the same evidence in connection with the murder case, because the firearm could not at the same time be possessed as well as not possessed by the accussed.
The acquittal under the Arms Act,, being proper, affected the evidence of possession in the murder case.
In Mohinder Singh 's case(2) as well as in Gurcharan 's(3) case Pritam 's(1) case was distinguished because in those cases, the acquittal under the Arms Act was later than the conviction on the substantive charge.
There is nothing in common between the present appeal and the two cases relied upon by the appellants.
In this case there is no doubt a prior acquittal but on a charge which was quite different from and independent of the charge in the present case.
The assault on Tikam was over when the unlawful assembly formed its now common object namely the assault on Puran.
The acquittal proceeded mainly because Puran compounded the offence under section 323 and the High Court did not feel impressed by the evidence about the remaining charges, The charges on which that acquittal took place had nothing whatever to do with the charges on which there is conviction in the present appeal.
A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arises when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made un (1) A.I.R. 1956 section C. 415.
(2) Cr. A. No. 140 of 1961, decided on 31 7 63 (unreported).
(3) 679 der section 236 or for which he might have been convicted under section 237.
Section 236 provides for a situation where it is doubtful what offence has been committed.
When a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, that section permits that the accused may be charged with having committed all or any of such offences and any number of such charges may be tried at once or he may be charged in the alternative with having committed some one of such offences.
Section 237 enables the Court to convict an accused charged with one offence for a different offence where the facts show that a different offence has been committed.
Neither of these provisions is applicable to the present facts because the two offences were distinct and spaced slightly by time and place.
The trials were separate as the two incidents were viewed as distinct transactions.
Even if the two incidents could be viewed as connected so as to form parts of one transaction it is obvious that the offences were distinct and required different charges.
The assault on Tikam in fulfilment of the common object of the unlawful assembly was over when the unlawful assembly proceeded to the house of Tikam to loot it.
The new common object to beat Puran was formed at a time when the common object in respect of Tikam had been fully worked out and even if the two incidents could be taken to be connected by unity of time and place (which they were not), the offences were dis tinct and required separate charges.
The learned Sessions judge was right in breaking up the single charge framed by the magistrate and ordering separate trials.
In this view the prior acquittal cannot create a bar in respect of the conviction herein reached.
It was contended by Mr. Tewatia that the earlier judgment involved almost the same evidence and the reasoning of the learned judge in Puran 's case destroys the prosecution case in the present appeal.
He attempted to use the earlier judgment to establish this point.
In our opinion he cannot be allowed to rely upon the reasoning in the earlier judgment proceeding as it did upon evidence which was separately recorded and separately 680 considered.
The eye witnesses in this case are five in number, while in the other case there were only two, but that apart, the earlier judgment can only be relevant if it fulfils the conditions laid down by the Indian Evidence Act in sections 40 43.
The earlier judgment is no doubt admissible to show the parties and the decision but it is not admissible for the purpose of relying upon the appreciation of evidence.
Since the bar under section 403 Criminal Procedure Code did not operate, the earlier judgment is not relevant for the interpretation of evidence in the present case.
Mr. Tewatia attempted to argue on the facts of this case but we did not permit him to do so because this Court, in the absence of special circumstances, does not review for the third time, evidence, which has been accepted in the High Court and the Court below.
No such circumstance has been pointed out to us to make us depart from the settled practice.
The appeal therefore fails and is dismissed.
Appeal dismissed.

summary/full:
The eight appellants variously armed attacked one 'T ' and as a result of the assault 'T ' died.
These appellants then proceeded to loot the house of 'T ' and on the way met four others who joined them.
They then came across one 'P ' and assaulted him.
There was a small gap of time and 'the places of assault were different.
The magistrate framed a single charge but the Session Judge framed two charges namely one connected with the attack on 'T ' and the other connected with the attack on 'P '.
He also separated the trials on the two charges.
The Sessions judge convicted the appellants in both cases.
The appeal in the second case i.e. the case relating to assault on 'P ' was heard first by the High Court and the appellants were acquitted of the charges of being members of an unlawful assembly.
Later the appeal connected with the assault on 'T ' was heard by the High Court and in that appeal their convictions and sentences were confirmed.
The present appeal arises out of the convictions and sentences passed by the High Court.
The appellants contended that the prior acquittal in the second case operated as a bar to the conviction in the present case.
The appellants relied on a decision of the Privy Council namely Sarnbasivam vs Public Prosecutor Federation of Malaya and of this Court in Pritam Singh vs State of Punjab.
Held: (i) There was nothing in common between the present appeal and the aforesaid two cases relied upon by the appellants.
In this case the assault on 'T ' was over when the unlawful assembly formed its new common object namely the assault on 'P '.
(ii) A plea of autrefois acquit which is statutorily recognised in India under section 403 of the Code of Criminal Procedure arose when a person is tried again for the same offence or on the same facts for any other offence for which a different charge from the one made against him might have been made under section 236 or for which he might have been convicted under section 237.
The prior acquittal in the other case did not operate as a bar to the conviction in the present case as the charge in the other case was quite different from and independent of the charge in the present case, and sections 236 and 237 of Code of Criminal Procedure were not applicable to the present facts because the two offences were distinct.
Sambasivam vs Public Prosecutor Federation of Malaya, [ , Pritam Singh vs State of Punjab, A.I.R. 1956 S.C. 415, Gurcharan Singh vs State of Punjab, and 674 Mohinder Singh vs State of Punjab, Cr.
A. No. 140 of 1961 decided on 31 7 63, explained.
(iii) This court, in the absence of special circumstances, does not review for the third time evidence which has been accepted in the High Court and the trial court.


judgement:
iminal Appeal No. 98 of 1960.
Appeal by special leave from the judgment and order dated January 20, 1960 of the Punjab High Court in Criminal Appeal No. 683 of 1957.
I. M. Lall and B. N. Kirpal, for the appellant.
B. K. Khanna and R. N. Sachthey, for the respondent.
August 28, 1963.
The Judgment of the Court was delivered by DAS GUPTA J.
Sajjan Singh, son of Chanda Singh, joined the service of the Punjab Government in January 1922 as an Overseer in the Irrigation Department.
He continued as Overseer till July 1944 when he became a Sub divisional Officer in the Department.
From the date till May 1947 he worked as Sub Divisional Officer in that part of Punjab which has now gone to West Pakistan.
From November 30, 1947 to September 26, 1962 he was employed as Sub Divisional Officer of Drauli Sub Division of the Nangal Circle, except for a short break from November 8, 1950 to April 3, 1951, when he was on leave.
The work of excavation for the Nangal Project 632 within the Drauli Sub Division was carried out by several contractors, including Ramdas Chhankanda Ram and M/s. Ramdas Jagdish Ram.
On December 7, 1952, the General Manager, Bhakra Dam, made a complaint in writing to the Superintendent of Police, Hoshiarpur, alleging that Sajjan Singh and some other officials subordinate to him had by illegal and corrupt means and by abusing their position as public servants, dishonestly and fraudulently, obtained illegal gratification from the contractors Ramdas Chhankanda Ram and M/s. Ram Das Jagdish Ram by withholding their payments and putting various obstacles in the smooth execution of the work entrusted to them.
A case under section 45(2) of the Prevention of Corruption Act, 1947 was registered on the basis of this complaint, which was treated as a first information report and after sanction of the Government of Punjab had been obtained for the prosecution of Sajjan Singh under section 5(2) of the Prevention of Corruption Act and section 161/165 of the Indian Penal Code, Sajjan Singh was tried by the Special Judge, Ambala, on a charge under section 5(2) of the Act.
The learned Special judge convicted him under section 5(2) of the Prevention of Corruption Act and sentenced him to rigorous imprisonment for one year and a fine of Rs. 5000/in default of payment of fine, he was directed to undergo rigorous imprisonment for six months.
The conviction and sentence were confirmed by the Punjab High Court, on appeal.
The High Court however rejected the State 's application for enhancement of the sentence.
The present appeal is by Sajjan Singh against his conviction and sentence under section 5(2) of the Prevention of Corruption Act by special leave of this Court.
The prosecution case is that after work had been done by the firm Ramdas Chhankandas for several months, and some 'running ' payments had been received without difficulty, the appellant demanded from Ram Das, one of the partners of the firm, his commission on the cheques issued to the partenrship firm.
It is said that Ram Das at first refused.
But, ultimately when the appellant started unnecessary criticism of the work done by them and even withholding some running payments the partners of the firm decided to pay commission to him as demanded.
The 633 first payment, it is said, was made on March 21, 1949 and further payments were thereafter made from time to time.
The case is that the partnership paid altogether a sum of Rs. 10,500/ in cash as commission to the appellant, besides paying Rs. 2,000/ to him for payment to the Executive Engineer and Rs. 241/12/ made up of small sums paid on different occasions on behalf of the accused.
All these payments made to the appellant were fully entered in the regular Rokar and Khata Bhais of the partnership under a fictitious name of Jhalu Singh, Jamadar, though a few of the later payments were entered in these books in Sajjan Singh 's own name.
In order to allay suspicion some fictitious credit entries were also made in the books.
The prosecution also alleged payment to the appellant of Rs. 1,800/ by another firm M/s. Ram Das Jagdish Ram.
But as that has not been found to be proved it is unnccessary to mention details of the allegations in that connection.
To prove its case against the appellant the prosecution relied on the testimony of three partners of the firm who claimed to have made payments and on various entries in the several books of account of the firm.
The prosecution also tried to prove the guilt of the accused by showing that the pecuniary resources and property that were in the ap pellant 's possession or in the possession of his wife, Dava Kaur, and his son, Bhupinder Singh, on his behalf we are disproportionate to the appellant 's known sources of income.
The learned Special judge mentioned the possession of pecuniary resources and property disproportionate to his known sources of income in the charge framed against the accused.
According to the prosecution the total assets held by the appellant, and his wife, Dava Kaur, and his son Bhupinder Singh on his behalf, on December 7, 1952 amounted to Rs. 1,47,502/12/ , while his total emoulments upto the period of the charge would come to about Rs. 80,000/ .
The main defence of the appellant as regards this allegation of possession of pecuniary resources and property disproportionate to his known sources of income was that the property and pecuniary resources held by his wife and son were not held on his behalf and that what, was in his possession amounted to less than Rs. 50,000/ and can by no means be said to be disproportionate to his known 41 2 section C. India/64.
634 sources of income.
In denying the charge against him the appellant also contended that false evidence had been given by the three partners and false and fictitious books prepared by them in support of their own false testimony.
The learned Special judge rejected the defence contention that the account books on which the prosecution relied had not been kept regularly in the course of business and held the entries therein to be relevant under section 34 of the Indian Evidence Act.
He accepted the defence contention that evidence of the partners who were in the position of accomplices required independent corroboration and also that the account books maintained by themselves would not amount to independent corroboration.
Independent corroboration was however in the opinion of the learned Judge furnished by the fact that some admitted and proved items of payment were interspersed in the entire account books.
The learned judge also accepted the prosecution story as regards the possession of pecuniary resources and property by the appellant 's wife and his son on his behalf and adding these to what was in the appellant 's own possession he found that the total pecuniary resources and property in his possession or in the possession of his wife and son were disproportionate to his known sources of income, and that such possession had not been satisfactorily accounted for.
He concluded that the presumption under section 5(3) of the Prevention of Corruption Act was attracted.
On all these findings he found the appellant guilty of the charge for criminal misconduct in the discharge of his duties and convicted and sentenced him as, stated above.
The two learned judges of the Punjab High Court who heard the appeal differed on the question whether pecuniary resources and property acquired before March 11, 1947, when the Prevention of Corruption Act came into force, could be taken into consideration for the purpose of section 5 (3) of the Act.
In the opinion of Mr. Justice Harbans Singh these could not be taken into consideration .
Taking into consideration the assets acquired by the appellant after January 1948 the learned judges held that these came to just above Rs. 20,000/ and could not be held to be disproportionate to his known sources of income.
The other learned Judge, Mr. Justice 635 Capoor, was of opinion that pecuniary resources and property acquired prior to March 11, 1947 had also to be taken into consideration in applying section 5 (3) of the Prevention of Corruption Act if they were in the possession of the accused or anybody on his behalf, on the date when the complaint was lodged.
He agreed with the Special judge that certain assets possessed by Daya Kaur and Bhupinder Singh were possessed by them on behalf of the appellant and that those possessed by him, or by his wife and son on his behalf were much in excess of his known sources of income, even without making any allowance for his house hold expenses.
Mr. justice Capoor further held that if the pecuniary resources or property acquired during the period April 1, 1947 to June 1, 1950 as suggested on behalf of the appellant were considered such assets held by the appellant or any other person on his behalf were more than double of the known sources of his income without making any allowance whatever for the appellant 's house hold expenses.
In the opinion of the learned judge a presumption under subsection 3 of section 5 of the Act therefore arose that the appellant had committed the offence, as the appellant had not been able to prove to the contrary.
Both the learned judges agreed that the witnesses who gave direct evidence about the payment of illegal gratification could not be relied upon without independent corroboration and that the entries in the books of account did by themselves amount to such corroboration, but that the fact of admitted and proved items being interspersed in the entire account furnished the required corroboration.
In the result, as has been already stated, the learned judges affirmed the conviction and sentence.
In support of the appeal Mr. 1.
M. Lall has attacked the finding that the books of account were kept regularly in the course of business and has contended that the entries therein were not relevant under section 34 of the Indian Evidence Act.
He further contended that even if they be relevant evidence the Special judge as also the High Court while rightly thinking that they by themselves did not amount to independent corroboration, were in error when they thought that the fact of certain admitted entries being interspersed through the books of account furnished the 636 necessary independent corroboration.
Mr. Lall has also argued that the Special Judge as well as Mr. justice Capoor in the High Court were wrong in drawing a presumption under section 5(3) of the Prevention of Corruption Act.
We shall first consider the question whether on the evidence on the record a presumption under section 5(3) of the Prevention of Corruption Act arose.
It is useful to remember that the first sub section of section 5 of the Prevention of Corruption Act mentions in the four clauses a, b, c and d, the acts on the commission of which a public servant is said to have committed an offence of criminal misconduct in the discharge of his duties.
The second subsection prescribes the penalty for that offence.
The third subsection is in these words: "In any trial of an offence punishable under sub section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal.
misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption.
" This sub section thus provides an additional mode of proving an offence punishable under sub section 2 for which any accused person is being tried.
This additional mode is by proving the extent of the pecuniary resources or property in the possession of the accused or any other person on his behalf and thereafter showing that this is disproportionate to his known sources of income and that the accused person cannot satisfactorily account for such possession.
If these facts are proved the section makes it obligatory on the Court to presume that the accused person is guilty of criminal misconduct in the discharge of his official duty, unless the contrary, i.e., that he was not so guilty is proved by the accused.
The section goes on to say that the conviction for an offence of criminal misconduct shall not be invalid by reason only that it is based solely on such presumption.
637 This is a deliberate departure from the ordinary principle of criminal jurisprudence, under which the burden of proving the guilt of the accused in criminal proceedings lies all the way on the prosecution.
Under the provision of this subsection the burden on the prosecution to prove the guilt of the accused must be held to be discharged if certain facts as mentioned therein arc proved; and then the burden shifts to the accused and the accused has to prove that in spite of the assets being disproportionate to his known sources of income, he is not guilty of the offence.
There can be no doubt that the language of such a special provision must be strictly construed.
if the words are capable of two constructions, one of which is more favorable to the accused than the other, the Court will be justified in accepting the one which is more favourable to the accused.
There can be no Justification however for adding any words to make the provision of law less stringent than the legislature has made it.
Mr. Lall contends that when the section speaks of the accused being in possession of pecuniary resources or pro perty disproportionate to his known sources of income only pecuniary resources or property acquired after the date of the Act is meant.
To think otherwise, says the learned Counsel, would be to give the Act retrospective operation and for this there is no 'Justification.
We agree with the learned Counsel that the Act has no retrospective operation.
We are unable to agree however that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which are acquired before the date of the Act is in any way giving the Act a retrospective operation.
A statute cannot be said to be retrospective "because a part of the requisites for its action is drawn from a time antecedent to its passing".
(Maxwell on interpretation of Statutes, 11th Edition, p. 211; See also State of Maharashtra vs Vishnu Ramchandra(l)).
Notice must be taken in this connection of a suggestion made by the learned Counsel that in effect sub section 3 of section 5 creates a new offence in the discharge of official duty, different from what is defined in the four clauses of section 5(l).
It is said that the act of being in possession of pecuniary resources or pro (1) ; 638 perty disproportionate to known sources of income, if it cannot be satisfactorily accounted for, is said by this sub section to constitute the offence of criminal misconduct in addition to those other acts mentioned in cls.
a, b, c and d of section 5(l) which constitute the offence of criminal mis conduct.
On the basis of this contention the further argu ment is built that if the pecuniary resources or property acquired before the date of the Act is taken into consi deration under sub section 3 what is in fact being done is that a person is being convicted for the acquisition of pecuniary resources or property, though it was not in vio lation of a law in force at the time of the commission of such act of acquisition.
If this argument were correct a conviction of a person under the presumption raised under the section 5(3) in respect of pecuniary resources or property acquired before the Prevention of Corruption Act would be a breach of fundamental rights under article 20(l) of the Constitution and so it would be proper for the Court to construe section 5(3) in a way so as not to include possession of pecuniary resources or property acquired before the Act for the purpose of that subsection.
The basis of the argument that section 5(3) creates a new kind of offence of criminal misconduct by a public servant in the discharge of his official duty is however unsound.
The sub section does nothing of the kind.
It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(1) for which an accused person is already under trial.
It was so held by this Court in C.D.S. Swamy vs The State(1) and again in Surajpal Singh vs State of U.p.(2).
It is only when a trial has commenced for criminal misconduct by doing one or more of the acts mentioned in cls.
a, b, c and d of section 5(l) that sub s 3 can come into operation.
When there is such a trial, which necessarily must be in respect of acts committed after the Prevention of Corruption Act came into force, sub section 3 places in the hands of the prosecution a new mode of proving an offence with which an accused has already been charged.
Looking at the words of the section and giving them their plain and natural meaning we find it impossible to say that pecuniary resources and property acquired before (1) ; (2) [1961] 1 2 S.C.R. 971.
639 the date on which the Prevention of Corruption Act came into force should not be taken into account even if in possession of the accused or any other person on his behalf.
To accept the contention that such pecuniary resources or property should not be taken into consideration one has to read into the section the additional words "if acquired after the date of this Act" after the word "property".
For this there is no justification.
It may also be mentioned that if pecuniary resources or property acquired before the date of commencement of the Act were to be left out of account in applying subs.
3 of section 5 it would be proper and reasonable to limit the receipt of income against which the proportion is to be considered also to the period after the Act.
On the face of it this would lead to a curious and anomalous position by no means satisfactory or helpful to the accused himself.
For, the income received during the years previous to the commencement of the Act may have helped in the acquisition of property after the commencement of the Act.
From whatever point we look at the matter it seems to us clear that the pecuniary resources and property in the possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of sub section 3 of section 5, whether these were acquired before or after the Act came into force.
Mention has next to be made of the learned Counsel 's submission that the section is meaningless.
According to the learned Counsel, every pecuniary resource or property is itself a source of income and therefore it is a contradic tion in terms to say that the pecuniary resources or pro perty can be disproportionate to the known sources of income.
This argument is wholly misconceived.
While it is quite true that pecuniary resources and property are themselves sources of income that does not present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income including, it may be, these very items of property in the past could yield such income as to explain reasonably the emergence of these assets at this point of time.
Lastly it was contented by Mr. Lall that no presump 640 tion under section 5(3) can arise if the prosecution has adduced other evidence in support of its case.
According to the learned Counsel, section 5(3) is at the most an alternative mode of establishing the guilt of the accused which can be availed of only if the usual method of proving his guilt by direct and circumstantial evidence is not used.
For this astonishing proposition we can find no support either in principle or authority.
Mr. Lall sought assistance for his arguments from a decision of the Supreme Court of the United States of America in D. Del Vecchio vs Botvers(1).
What fell to be considered in that case was whether a presumption created by section 20(d) of the Longshoremen 's and Harbor Workers ' Compensation Act that the death of an employee was not suicidal arose where evidence had been adduced by both sides on the question whether the death was suicidal or not.
The Court of Appeal had held that as the evidence on the issue of accident or suicide was in its judgment evenly balanced the presumption under section 20 must tip the scales in favour of accident.
This decision was reversed by the learned Judges of the Supreme Court.
Section 20 which provided for the presumption ran thus: "In any proceedings for the enforcement of a claim for compensation. it shall be presumed, in the absence of substantial evidence to contrary that the injury was not occasioned by the wailful intention of the injured employee to injure or kill himself or another.
" On the very words of the section the presumption against suicide would arise only if substantial evidence had not been adduced to support the theory of suicide.
It was in view of these words that the learned judges observed: .lm15 "The statement in the act that the evidence to overcome the effect of the presumption must be substantial adds nothing to the well understood principle that a finding must be supported by evidence.
Once the employer has carried his burden by offering testimony sufficient to justify a finding of suicide, the presumption falls out of the case.
It never had and cannot acquire the attribute of evidence in the claimant 's favour.
Its only office is to control the result where (1)296 U.S. 280 : 80 L. ed. 229.
641 there is an entire lack of competent evidence.
If the employer alone adduces evidence which tends to support the theory of suicide, the case must be decided upon that evidence.
Where the claimant offers substantial evidence in opposition, as was the case here, the issue must be resolved upon the whole body of proof pro and con.
" The whole decision turns upon the words 'in the absence of substantial evidence".
These or similar words are conspicuous by their absence in sub section
3 of section 5 of the Prevention of Corruption Act, and consequently, Del Vec chio 's Case(1) is of no assistance.
Mr. Lall then drew our attention to an observation of Lord Denning in Bratty vs Attorney General for Northern Ireland(2) where speaking about the presumption that every man has sufficient mental capacity to be responsible for his crimes, the Lord Justice observed that the presumption takes the place of evidence.
Similarly, argues Mr. Lall, the presumption under section 5(3) of the Prevention Corruption Act also merely "takes the place" of evidence.
So, he says, it can arise only if no evidence has been adduced.
We are not prepared to agree however that when the Lord Justice used the words "a presumption takes the place of evidence" he meant that if some evidence had been offered by the prosecution the prosecution could not benefit by the presumption.
We see no warrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused the pro secution is barred from adducing evidence in support of its case if it wants to rely on the presumption.
Turning now to the question whether the facts and circumstances proved in this case raise a presumption under section 5(3), we have to examine first whether certain pecuniary resources or property in possession of Daya Kaur and those in possession of Bhupinder Singh were possessed by them on behalf of the appellant as alleged by the prosecution.
On December 7, 1952, Bhupinder Singh has been proved to have been in possession of: (1) Rs. 28,998/7/3/ in the Punjab National Bank; (2) Rs. 20,000/ in fixed deposit with the Bank of Patiala at Doraha (3) Rs. 5,577/ (1)226 U.S. 280.
(2) [1961] 3 All.
E.R. p. 523 at 535.
642 in the Imperial Bank of India at Moga; (4) Rs. 237/8/3/in the Savings Bank Account in the Bank of Patiala at Doraha; and (5) Half share in a plot of land in Ludhiana of the value Rs. 11,000/ .
Bhupinder Singh has given evidence (as the 11th witness for the defence) and has tried to support his father 's case that none of the properties were held by him on behalf of his father.
Bhupinder Singh has been in military service since 1949 and was at the time when he gave evidence a Captain in the Indian Army.
If the bank deposits mentioned above had been made by him after he joined military service there might have been strong reason for thinking that they were his own money.
That however is not the position.
Out of the sum of Rs. 28,998/ with the Punjab National Bank a part is admittedly interest; the remainder, viz., about Rs. 26,000/ was deposited by Bhupinder Singh in his account long before 1949 when he joined military service.
His explanation as to how he got this money is that Rs. 20,200/ was received by him from Udhe Singh in December 1945 and Rs. 6,000/ was given to him by his grand father Chanda Singh.
Udhe Singh has given evidence in support of the first part of the story and has said that he paid Rs. 20,200/ to Bhupinder Singh in payment of what he owed to Bhupinder Singh 's grandfather Chanda Singh and to his father Sajjan Singh.
When asked why he made the payments to Bhupinder Singh, son of Sajjan Singh instead of to Chanda Singh or to Chanda Sing 's son Surjan Singh, Udhe Singh replied that he did so "because my account was with Sardar Sajjan Singh." Udhe Singh it has to be remembered is a close relation of Sajjan Singh, Sajjan Singh 's father Chanda Singh being Udhe Singh 's mother 's brother.
On a careful consideration of the evidence of these two witnesses, Bhupinder Singh and Udhe Singh and also the registered letter which was produced to show that a pucca receipt was demanded for an alleged payment of Rs. 20,200/ we have come to the conclusion that the Special Judge has rightly disbelieved the story that this sum of Rs. 20,000/ was paid by Udhe Singh to Bhupinder Singh.
It has to be noticed that even if this story of payment was believed that would not improve the appellant 's case.
For, according to Udhe Singh this payment was 643 made by him to Bbupinder Singh on behalf of his father.
In any case, therefore, this amount of Rs. 20,200/ was Sajjan Singh 's money.
As regards the other amount of Rs. 6000/ which formed part of the deposits in the Punjab National Bank and a further sum of Rs. 20,000/in fixed deposit with the Bank of Patiala the defence case as sought to be proved by Bhupinder Singh was that these were received by him from his grand father Chanda Singh.
The learned Special judge disbelieved the story and on a consideration of the reasons given by him we are of opinion that his conclusion is correct.
When it is remembered that Bhupinder Singh was at the relevant dates a student with no independent income or property of his own the reasonable conclusion from the rejection of his story about these amount is, as held by the Special Judge, that these were possessed by him on behalf of his father, Sajjan Singh.
We are also convinced that the Special Judge was right in his conclusion that Rs. 5,577/ in the Imperial Bank of India at Moga, Rs. 237/8/3 in the Savings Bank Account in the Bank of Patiala at Doraha and the half share in a plot of land in Ludhiana of the value of Rs. 11,000/ standing in the name of Bhupinder Singh were held by Bhupinder Singh on behalf of his father, Sajjan Singh.
It has to be mentioned that Mr. Justice Capoor in the High Court agreed with these conclusions, while the other learned judge (Mr. Justice Harbans Singh) did not examine this question at all being wrongly of the opinion that the properties acquired prior to March 11, 1947 should not be taken into consideration.
Thus even if we leave out of account the amount of Rs. 26,500/ standing in the name of appellant 's wife Daya Kaur which according to the prosecution was held by her on behalf of her husband, Sajjan Singh, it must be held to be clearly established that the pecuniary resources or property in possession of Sajjan Singh and his son, Bhupinder Singh, on his behalf amounted to more than Rs. 1,20,000/ .
The question then is: Was this disproportionate to the appellant 's known sources of income? As was held by this Court in Swamy 's Case(1) "the expression 'known sources of income ' must have reference to (1) ; 644 sources known to the prosecution on a thorough investigation of the case" and that it could not be contended that 'known sources of income ' meant sources known to the accused.
In the present case the principal source of income known to the prosecution was what the appellant received as his salary.
The total amount received by the appellant throughout the period of his service has been shown to be slightly less than Rs. 80,000/ .
The appellant claimed to have received considerable amounts as traveling allowance a Overseer and S.D.O. and also as horse and conveyance allowance.
For the period of his service prior to May 1947, the records which would have shown what the accused drew as traveling allowance were not available.
The Special judge found that from May 1947 upto January 1953 the appellant got Rs. 6,504/6/ as traveling allowance.
On that basis he also held that for the period of service as S.D.O. prior to May 1947 he may have got about Rs. 5,000/ at the most.
For the period of his service as Overseer, the learned Special judge held that, the appellant did not get more than Rs. 100/ a year as travelling allowance, including the horse allowance.
No reasonable objection can be taken to the conclusion recorded by the Special Judge as regards the travelling allowance drawn by the appellant for the period of his service as S.D.O.
It was urged however that Rs. 100/ a year ,is travelling allowance is too low an estimate for his services as Overseer.
As the relevant papers are not available it would be proper to make a liberal estimate under this head favourable to the appellant.
Even at the most liberal estimate it appears to us that the total receipts as travelling allowance as Overseer could not have exceeded Rs. 5,000/ .
One cannot also forget that much of what is received as travelling allowance has to be spent by the officer con cerned in travelling expenses itself.
For many officers it 'IS not unlikely that travelling allowance would fall short of these expenses and they would have to meet the deficit from their own pocket.
The total receipt that accrued to the appellant as the savings out of travelling allowance inclusive of horse allowance and conveyance allowance, could not reasonably be held to have exceeded Rs. 10,000/at the most.
Adding these to what he received as salary and also as Nangal Compensatory allowance the total in 645 come received during the years would be about Rs. 93,000/ .
It also appears that income by way of interest was earned by the appellant on his provident fund and also the bank deposits standing in his own name or in the name of his son, Bhupinder Singh.
The income under this head appears to be about Rs. 10,000/ .
The total receipts by the appellant from his known sources of income thus appears to be about Rs. 1,03,000/ .
If nothing out of this had to be spent for maintaining himself and his family during all these years from 1922 to 1952 there might have been ground for saying that the assets in the appellant 's possession, through himself or through his son (Rs. 1,20,000/ ) were not disproportionate to his known sources of income.
One cannot however live on nothing; and however frugally the appellant may have lived it appears to us clear that at least Rs. 100/ per month must have been his average expenses throughout these years taking the years of high prices and low prices together.
These expenses therefore cut a big slice of over Rs. 36,000/ from what he received.
The assets of Rs. 1,20,000/ have therefore to be compared with a net income of Rs. 67,000/ .
They are clearly disproportionate indeed highly disproportionate.
Mr. Lall stressed the fact that the legislature had not chosen to indicate what proportion would be considered disproportionate and he argued on that basis that the Court should take a liberal view of the excess of the assets over the receipts from the known sources of income.
There is some force in this argument.
But taking the most liberal view, we do not think it is possible for any reasonable man to say that assets to the extent of Rs. 1,20,000/ is anything but disproportionate to a net income of Rs. 1,03,000/ out of which at least Rs. 36,000/ must have been spent in living expenses.
The next question is : Has the appellant satisfactorily accounted for these disproportionately high assets? The Speical judge has examined this question carefully and rejected as untrustworthy the appellant 's story of certain receipts from one Kabul Singh, his son Teja Singh, and from his father, Chanda Singh.
These conclusions appear to us to be based on good and sufficient reasons and we can see nothing that would justify us in interfering with these.
646 The prosecution has thus proved facts on which it becomes the duty of the Court to assume that the accused has committed the offence with which he is charged, unless the contrary is proved by him.
Mr. Lall has submitted that if the other evidence on which the prosecution relied to prove its case against the appellant is examined by us, he will be able to satisfy us that evidence is wholly insufficient to prove the guilt of the accused.
It has to be remembered however that the fact assuming it to be a fact in this case that the prosecution has failed to prove by other evidence the guilt of the accused, does not entitle the Court to say that the accused has succeeded in proving that he did not commit the offence.
Our attention was drawn in this connection to this Court 's decision in Surajpal Singh 's Case(1) where this Court set aside the conviction of the appellant Surajpal Singh on the basis of the presumption under section 5(3).
What happened in that case was that though the accused had been charged with having committed the offence of criminal misconduct in the discharge of his duty by doing the acts mentioned in cl.
(c) of sub section 1 of section 5, the Special Judge and the High Court convicted him by invoking the rule of presumption laid down in sub section
3 of section 5, of an offence under cl.
(d) of section 5(l).
This Court held that it was not open to the Courts to do so.
This case is however no authority for the proposition that the courts could not have convicted the accused for an offence under section 5 ( 1) (c) for which he had been charged.
On the contrary it seems to be a clear authority against such a view.
After pointing out that the charge against the appellant was that he has dishonestly and fraudulently misappropriated or otherwise converted for his own use property entrusted to him, this Court observed: "It was not open to the learned Special Judge to have convicted the appellant of that offence by invoking the rule of presumption laid down in sub section (3).
He did not however to do so.
On the contrary he acquit ted the appellant on that charge.
Therefore, learned Counsel has submitted that by calling in aid the rule of presumption in sub section 3 the appellant could not be found guilty of any other type of criminal misconduct (1) ; 647 referred to in cls.
(a), (b) or (d) of sub section
(1) in respect of which there was no charge against the appellant.
We consider that the above argument of learned Counsel for the appellant is correct and must be accepted.
" The appellant 's Counsel is not in a position to submit that there is evidence on the record which would satisfy the Court that the accused has "proved the contrary", that is, that he had not committed the offence with which he was charged.
We have therefore come to the conclusion that the facts proved in this case raise a presumption under section 5(3) of the Prevention of Corruption Act and the appellant 's conviction of the offence with which he was charged must be maintained on the basis of that presumption.
In this view of the matter we do not propose to consider whether the High Court was right in basing its conclusion also on the other evidence adduced in the case to prove the actual payment of illegal gratification by the partners of the firm M/s. Ramdas Chhankanda Ram.
Lastly, Mr. Lall prayed that the sentence be reduced.
The sentence imposed on the appellant is one year 's rigorous imprisonment and a fine of Rs. 5,000/ .
Under section 5(2) the minimum sentence has to be one year 's imprisonment, subject to the proviso that the Court may for special reasons to be recorded in writing, impose a sentence of imprisonment of less than one year.
We are unable to see anything that would justify us in taking action under the proviso.
In the result, the appeal is dismissed.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was an overseer and then became a Sub Divi sional Officer in the Irrigation Department.
On the basis of a complaint, a case was registered against him and after sanction by the Government had been obtained for his prosecution under section 5(2) of the Prevention of Corruption Act and section 161/165 of the Indian Penal Code he was tried by the special judge on a charge under section 5(2) of the Act.
The allegation made was that the appellant demanded his commission from the contractors on the cheques issued to them and on are Used he started with holding their payments and putting obstacles in the smooth execution of the work entrusted to them.
The commission was then paid from time to time and the payments were fully entered in the regular Rokar and Khata Bhais.
The trial court accepted the prosecution case and found that the total pecuniary resources and property in appellant 's possession or in the possession of his wife and son were disproportionate to his known sources of income and that such possession had not been satisfactorily accounted for.
On these findings the presumption under section 5(3) of the Prevention of Corruption Act was raised and the appellant was convicted and sentenced to rigorous imprisonment for one year and a fine of Rs. 5,000/ in default, rigorous imprisonment for six months.
On appeal, the conviction and sentence were confirmed by the High Court.
The two learned judges of the High Court, however, differed on the question whether pecuniary resources and property acquired before the Prevention of Corruption Act came into force, could be taken into consideration for the purpose of section 5(3) of the Act.
Held, that to take into consideration the pecuniary resources or property in the possession of the accused or any other person on his behalf which were acquired before the date of the Act, was in no way giving the Act a retrospective operation.
Maxwell on Interpretation of statutes, 11th Edition, P. 210 and State of Bomaby vs Vishnu Ramchandra, [1961] 2 S.C.R. 26, relied on.
Sub section 3 of section 5 does not create a new kind of offence.
It merely prescribes a rule of evidence for the purpose of proving the offence of criminal misconduct as defined in section 5(l) for which an accused person is already under trial.
C.S.D. Swamy vs The State, [196 of 1 S.C.R. 461 and Surajpal Singh vs State of U.P. ; , relied on.
631 On proper construction of the words of the section and giving them their plain and natural meaning, it is clear, that the pecuinary resources and property in possession of the accused person or any other person on his behalf have to be taken into consideration for the purpose of section 5(3), whether these were acquired before or after the Act came into force.
While it is quite true that pecuniary resources and property are themselves sources of income, that does not present any difficulty in understanding a position that at a particular point of time the total pecuniary resources or property can be regarded as assets, and an attempt being made to see whether the known sources of income, including, it may be, these very items of property, in the past, could yield such income as to explain reasonably the emergence of these assets at this point of time.
There is no warrant for the proposition that where the law provides that in certain circumstances a presumption shall be made against the accused, the prosecution is barred from adducing evidence in support of its case if it wants to rely on the presumption.
D. Del Vecchio vs Bowers, ; ; 80 L. ed. 229 and Bratty vs Attorney General for Northern Ireland, ; , held inapplicable.
The facts proved in this case raise a presumption under section 5(3) of the Act and the appellant 's conviction must be maintained on the basis of that presumption.


judgement:
minal Appeal No. 152 of 1962.
710 Appeal by special leave from the judgment and order dated April 4, 1962 of the Rajasthan High Court in D. D. Criminal Appeal No. 505 of 1961.
section K. Kapur, section Murthy, B. N. Kirpal and K. K. lain, for the appellant.
H. R. Khanna and B. R. G. K. Achar for P. D. Menon, for the respondent.
August 29, 1963.
The judgment of the Court was delivered by DAS GUPTA J.
This appeal by special leave is against a conviction and sentence under section 167(81) of the .
The appellant was acquitted by the trial court, but on appeal by the State of Rajasthan, the Rajasthan High Court set aside the order of acquittal and convicted the appellant under section 167(81) of the , and sentenced him to rigorous unprisonment for one year.
The prosecution case was that on receipt of some information that gold smuggled from Pakistan was being carried, Lal Singh, Sub Inspector of the Check post of Barmer, followed the appellant into a railway train at Luni railway station, and in the running train between the stations of Kerla and Pali, searched appellant 's person and found that he was carrying 286 tolas of gold in a pouli under his trousers.
In the reasonable belief that these were smuggled goods, Lal Singh seized the gold.
The gold that was seized consisted of six blocks bearing marks "999", N. M. Rothschild & Sons, 22 bars bearing marks '999 ', 3 small pieces of gold and one pair of murkies.
Lal Singh seized the gold after preparing a seizure list in the presence of witnesses and later produced the appellant along with the gold before the Superintendent, Land Customs, Barmer.
By an order of the Collector of Customs, New Delhi, dated July 19,1957, this gold was confiscated and a fine of Rs. 10,000 was imposed on the appellant.
Criminal proceedings were afterwards instituted against the appellant on the allegation that he had committed an offence under section 167(81) of the .
The prosecution claimed that under section 178 A of the , the burden of proving that gold was not smuggled lay on the accused.
Even apart from that, the prosecution claimed, it was clear that the gold had been smuggled.
It was alleged that the appellant had carried 711 the gold knowingly with intent to evade the regulations prohibiting the import of gold Into India.
The main defence of the accused, who pleaded not guilty, was that no gold was recovered from him.
The trial court held that the prosecution had failed to establish the recovery of gold from the accused.
It further accepted the defence contention that Lai Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made.
According to the learned Magistrate, the seizure, if any, had not been made under the and so had not been made under "the Act" within the meaning of section 178 A, and there was no question of the accused having to prove that the gold was not smuggled.
On the evidence adduced by the prosecution, he was not convinced that it was smuggled gold.
Accordingly, he acquitted the accused.
The High Court came to contrary findings on all these points.
It held that the evidence of Lal Singh as regards the seizure should be believed and that the seizure of the gold from the accused had been proved satisfactorily.
It was also of the opinion that Lal Singh had authority to seize the gold at the place where the seizure was made, and that section 178 A of the applied.
In the opinion of the High Court, the accused had failed to prove that the gold was not smuggled and that under the provisions of section 178 A as also on the evidence in the case, the gold had been established to be smuggled gold.
All the ingredients of the offence, according to the High Court, had been proved, and therefore, the accused was convicted and sentenced as mentioned above.
Three points were raised before us by Mr. section K. Kapur in support of the appeal.
The first was that the High Court was not justified in disturbing the trial court 's finding that the seizure of the gold from the accused had not been proved.
The second point urged was that the High Court had fallen into an error in thinking that Lal Singh had authority to seize the gold at the place where the seizure was made.
The third contention was that in any case even if section 178 A applied and it was found that the gold was smuggled, the prosecution had failed to prove the necessary mens rea in the accused that was necessary to constitute the offence.
712 On the question of seizure of gold from the accused, the prosecution relied on the testimony of Lal Singh himself.
Lal Singh gave a detailed account as to how he followed the accused into the train at Luni station and in the running train conducted the search of his person in the presence of witnesses and recovered from his possession from a pouli tied beneath his trousers the gold identified in court as exhibit P.M. 1 32.
The seizure Memo.
which he claimed to have prepared at the time of the seizure was marked Exh.
This document mentions the names of three persons as search witnesses.
None of these was examined by the prosecution.
The third name mentioned in Exh.
P. 3 is Pukh Raj son of Awasthi Mal, aged about 22 years, resident of Ajit.
The defence examined a Pukh Raj who gave his father 's name as Basti Mal and who was resident of Ajit, and stated that he was the only Pukh Raj in that village.
The High Court seems to have doubted the indentity of Pukh Raj examined as defence witness as the Pukh Raj mentioned in the seizure list.
This finding has been attacked by Mr. Kapur as un justified.
Whether or not the Pukh Raj examined as defence witness is the same as the person whose name is mentioned in the seizure list, is not, however, of much consequence; for the fact remains that the prosecution has not got the evidence of any of the witnesses in whose presence the search and seizure are said to have been made, to support Lal Singh 's evidence.
The learned Magistrate gave this failure of the prosecution to examine the witnesses as the main reason for his inability to accept Lal Singh 's testimony.
The High Court has accepted Lal Singh 's testimony, but unfortunately the judgment does not indicate that the learned judges of the High Court took into consideration this fact that the search witnesses had not been examined.
We have, therefore, thought it necessary to examine the evidence for ourselves to see whether the seizure as alleged by the prosecution has been proved.
Lal Singh 's evidence on the point has already been mentioned.
It has to be noticed that the defence witness No. 2, Poonam Chand, has also spoken about the search.
His evidence is that police conducted search in the compartment when the train was enroute from Luni to Pali, and that "the police took search of the 713 accused Hukma present before the court and of two or three more persons named Kesrimal and Tarachand".
The witness added no gold was recovered from: the possession of the accused Hukma Ram, but admitted that in the same compartment a purse was recovered.
It has to be noticed that when Lal Singh was examined, no suggestion was made to him in cross examination that any other person had been searched in the compartment.
It is not unreasonable to think, therefore, that when Poonam Chand is speaking of search in the com partment of Hukma and the find of a purse there though stopping short of saying what was recovered from it, his evidence unwittingly supports the story given by Lal Singh about the search and the recovery of the gold.
It does not stand to reason that if two other persons bad been searched and gold had been found within one of them, this appellant, a pointsman in the Railway, should be falsely implicated and the person from whom the recovery of gold was made, should have been allowed; to, escape.
The accused suggested in his statement that Lal Singh was inimically disposed towards him because on one occasion Lai Singh had asked him to serve water and he had not done it at once.
There was no suggestion about this incident to Lai Singh in his cross examination, and we are convinced that this is: entirely false.
On a consideration of Lal Singh 's evidence along with the evidence of appellant 's own witness, Poonam Chand we are convinced that the story of recovery of gold from the accused is true.
The reason why the three witnesses mentioned in the seizure list have not come forward to support the prosecution case is, in, our poinion, not that the story of search and seizure as given by Lal Singh is not true, but that these witnesses have been gained over.
This brings us to Mr. Kapur 's main contention, namely, that Lal Singh was not a Customs Officer for the place where the seizure was made, and so the seizure was not under the , taken with the provisions of the .
The answer to this contention depends on the construction of the notification appointing Customs Officers for the areas adjoning the frontier between West Pakistan and India.
The notification as it stands after an amendment in 1956, runs 46 2 section C. India/64 714 as follows: "1.
In exercise of the powers conferred by Sub section (1) of section 3 of the (19 of 1924) read with the notification of the Government of India in the late Finance Deptt.
(Central Revenues) No. 5444, dated 1st 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 hereto annexed, to be Land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi." "The Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of Rajasthan." Asking us to give a restricted meaning to the word "adjoining" in the notification, Mr. Kapur has suggested that this notification gave authority to the Customs Officers only for the areas within a few miles from the border, He contended next that even if this be not accepted, the notification on a reasonable interpretation gave authority only to the officers of the Districts mentioned in the Schedule to function as Customs Officers in those Districts and nowhere else.
The trial court appears to have accepted this construction, and as admittedly the place of seizure was not in any of the District mentioned in the Schedule, it held that Lal Singh was not authorized to search the accused or to seize the gold.
The High Court, on the contrary, has taken the view that each of the officers mentioned in the Schedule has been appointed a Customs Officer for the entire area which has "jurisdiction of the Collector of Land Customs, Delhi".
In our opinion, this is the correct and only possible construction.
Section 3 of the authorizes the Central Government to appoint by notification in the official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification.
The section also authorizes 715 the Central Government to appoint by a similar notification such other persons as it thinks fit to be Customs Officers for the same area.
"Foreign frontier" has been defined in section 2, cl.
(e) of the Act as the frontier separating any foreign territory from any part of India.
"Land Customs area" has been defined in cl.
(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 in cl.
(e), it is clear that an area adjoining the frontiers separating any foreign territory from any part of India, is within these words.
What, then is meant by the word 'adjoining '? According to Mr. Kapur, only a few miles near the frontier can be considered to be adjoining the frontier.
We can see no justification for such a restricted construction of the word " adjoining".
It is true that the village next to the frontier adjoins the frontier.
It is equally correct, however, to describe the entire District nearest the frontier as adjoining the frontier ; and we can see nothing wrong in the entire State of Rajasthan adjoining the West Pakistan Frontier.
It appears to us that the Central Government treated the whole compact block consisting of the State of Punjab, State of Jammu & Kashmir and State of Rajasthan and Himachal Pradesh and Delhi as one area ad joining the West Pakistan frontier, and for this one area it appointed a Collector of Land Customs.
This appears clear from the order appointing the Collector of Central Excise, Delhi, to be the Collector of Land Customs (Notification No. 2L Customs, dated 25th January, 1958), taken with Rule 2(ii) A (i) of the Central Excise Rules, according to which Collector means "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".
In other words, the jurisdiction of the Collector of Central Excise, Delhi, is not only over Delhi, but also it extends to the States of Punjab, Jammu & Kashmir and Rajasthan and the Union Territories of Himachal Pradesh and Delhi.
It was for this entire area that the collector of Central Excise, Delhi was appointed Collector of Land Customs.
The resultant position, therefore, is that for this entire area of Punjab, Jammu and Kashmir, Rajasthan, Himachal and Delhi, one person has been ap 716 pointed Collector of Customs.
When, therefore, the Central Government proceeded next to appoint Land Customs Officers and stated that certain officers as specified in the schedule were appointed Land Customs Officers "for the areas adjoining the land customs frontiers separating West Pakistan from India", and added the words that they were to be Land Customs Officers "within the jurisdiction of the Collector of Land Customs, Delhi," it appears to us to be quite clear that every officer mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole areas which forms the Jurisdiction of the Collector of Land Customs, Delhi and is the area adjoining the West Pakistan frontier for which a Collector of Land Customs has already been ap pointed under section 3.
We find no justification for reading into the Schedule any indication of the area where the officers will operate.
The Schedule purports to mention the different officers of different districts who arc appointed Land Customs Officers not for those particular Districts but for the entire area.
Any other reading of the words used in the main body of the notification would be not only against the plain meaning of the words used but is likely to defeat the object for which Land Customs Officers are appointed.
We have, therefore, come to the conclusion that the construction put by the High Court on the notification is right, and Lai Singh, being an officer in the District of Barmer which is mentioned in the Schedule, was an officer for the entire area which formed the jurisdiction of the Collector of Land Customs, Delhi, including the place where the seizure was made, and was therefore competent to make the seizure.
There remains for consideration the last point raised by the learned counsel, namely, that even if Lal Singh had authority to seize at the place where the seizure was made and section 178 A of the applied, the prosecution had still to prove by further evidence that the accused had the mens rea necessary to constitute the offence.
Learned counsel rightly pointed that while section 178 A has the result of placing the burden of proof that the gold was not smug gled on the accused, it is of no assistance to the prose cution to prove that the accused was carrying the gold 717 knowingly to evade the prohibition which was for the time being in force with respect to the import of gold into India.
Once, however, it is found, as it must be found in this case, in consequence of the provisions of section 178 A (the accused has not tried to discharge the burden that lay on him that the gold was not smuggled) that he was carrying smuggled gold, the circumstances under which the gold was discovered, the manner in which he was carrying the gold, the considerable quantity of the gold that was being carried and the form in which gold was being carried, namely, blocks and bars in which the major portion of the gold was found, all these circumstances establish beyond a shadow of doubt that accused was carrying the gold knowingly and with the intention of evading the prohibition that was in force with respect to the import of gold into the country.
Mr. Kapur tried to argue that when gold is carried by persons, they often carry it in this manner in a pouli concealed under trousers.
That may well be so.
Here, however, there is an additional circumstance that a pointsman of the Railway, not expected to have so much gold in his possession, was carrying the gold which was, as already mentioned in six bloks and 22 bars apart from some small pieces and one pair of murkees.
The total quantity was as much as 286 tolas and 11 annas, that is, about three kilograms.
When all these circumstances are taken together, it is not possible to accept learned counsel 's suggestion that he might be carrying the gold innocently having purchased it from somebody.
In our opinion, the High Court has rightly held that all the ingredients of the offence under section 167(81) of the have been established.
It may be mentioned that it has not been disputed before us that if we believe the story of the recovery of the gold from the appellant, the circumstances are sufficient to establish that Lal Singh seized the gold in the reasonable belief that these were smuggled goods.
In the view we have taken in this matter, it is unnecesary to consider the further argument raised by Mr. H. R. Khanna, who apperaed for the State that even apart from section 178 A, the guilt of accused could be held to be proved by the confession made by him before the Deputy Superintendent, Land Customs, corroborated as it 718 is by the recovery of the gold from him.
All the points raised in the appeal on behalf of the appellant fail, and the appeal is, accordingly, dismissed.
Appeal dismissed.

summary/full:
The appellant was found carrying 286 tolas of gold in running train between Kerla and Pali stations by the Sub Inspector of Barmer District.
After the gold was seized, criminal proceedings were instituted against the appellant.
The trial court acquitted the appellant but the High Court convicted him.
The appellant 's case in this Court was that the seizure of the gold from him had not been proved; that the Sub Inspector was not a Customs Officer for the place where the seizure was made, and so the 709 seizure was not under the Land Customs Act; and that, in any view of the case, the prosecution had failed to prove the necessary mens rea in the appellant.
Section 3 of the Land Customs Act authorises the Central Government to appoint by notification one person to be the Collector of Land Customs for any area adjoining a foreign frontier and specified in the notification.
The section also authorises the Central Government to appoint such other persons as it thinks fit to be customs officer for the same area by a similar notification.
The relevant notification issued was as follows: "1.
In exercise of the powers conferred by sub section (1) of section 3 of the (19 of 1924) read with the notification of the Government of India in the late Finance Deptt.
(Central Revenues) No. 5444, dated 1st December 1924, the Central Board of Revenue hereby appoints for the areas adjoining the Land Customs Frontier separating West Pakistan from India, the officers of the Government of Rajasthan specified in the Schedule hereto annexed, to be land Customs Officers within the jurisdiction of the Collector of Land Customs Delhi.
""The Schedule." "All officers of the Rajasthan Civil Police and the Rajasthan Armed Constabulary of and above the rank of Head Constable posted in the Districts of Barmer, Bikaner, Ganganagar, Jaisalmer and Jalore in the State of Rajasthan.
" Held, that the word "adjoining" in the above notification means the whole compact block consisting of the State of Punjab, Jammu and Kashmir and Rajasthan and the Union territories of Himachal Pradesh and Delhi as one area adjoining the West Pakistan Frontier, and that for this entire area one person was appointed the Collector of Land Customs.
Every officer, therefore, mentioned in the Schedule would be a Customs Officer not for any particular District mentioned in the Schedule but for the whole area which forms the jurisdiction of the Collector of Land Customs Delhi.
Since in the instant case, the Sub Inspector was an officer mentioned in the Schedule, he would be an officer for the entire area which formed the jurisdiction of the Collector of Land Customs, Delhi, including the place where the seizure was made, and was therefore, competent to make the seizure.
Held, further, that on the evidence the story of the re covery of gold from the appellant was true, and that the circumstances, manner, quantity and the form in which gold was carried, clearly showed that the appellant was smuggling gold knowingly and with the intention of evading the prohibition in force with respect to the import of gold into the country.