HUKMA versus STATE OF RAJASTHAN

1963

T. Devadasan v. The Union <Jf India and Another

Subba Rao /.

708

SUPREME COURT REPORTS

[1964]

These general observations made in the ·context of· admis sions to college cannot, in my view, be applied in the case of a reservation of appointments in ·the matter of recruit ment to a cadre of particular service. The doctrine of "destruction" of the fundamental right depends upon the· entire cadre strength and the percentage reserved olit of that strength. Further, the expression used in the observa· tions, viz., "generally" and "broadly'', show that the· ob servations were intended only to be a workable guide but not an inflexible rule of law even in the case of admis- · sions to colleges.

I cannot, therefore, hold that in the present case the· provision made by the State was not for reservation but for a purpose not sanctioned by the Constitution. In the re sult, the writ petition is dismissed with costs.

ORDER BY COURT

In accordance with majority. opinion .. the Writ Peti

tion is allowed with. costs .

1963

August

•

. BUKMA v. STATE OF RAJASTHAN (M. HIDAYATULLAH AND K. C. DAS GUPTA, JJ.)

Sea Customs-Seizure of Gold-furisdictian of" Custom; 'Offi cer-"Adjoining", meaning of-Proof. ~·.of ·mens ·rea-Sea · Customs Act,·1878 (8 of 1878), ss. 167(81), 178-A-Land Customs Act, 1924 (19 of 1924), els. (e)(g), of"· 2, 3~.Central Excises Rules, ,1944, r. 2(ii)(A)(i).

.

The appellant was found carrying 286 tolas of gold in running train between Kerla and P-ali stations .by th~ Sub Inspe~tor of Bar mer District: After the go1d was seized, crir~inal prOceedings were instiNied against the 'appellant. The tri?l collrt acquitted the· ap pellant but the High ·Court convitted him. ·The appellan~'s case in this Court .was that.·the· seizure .9£ the gold from -him had not been proved; that the Sub-Inspector was not ·a~ :CU§toms Officer for the place where the seizure was made, and so the

1963

Hukm11

...

St11te of Raja<than.

-

4-S.C.R

SUPREME COURT REPORTS

7(J)

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 Col lector 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 (I) of section 3 of the Land Customs Act 1924 (19 of 1924) read with the notification of the Government of India - in the late (Central Revenues) No. 5444, dated !st Finance Deptt. December 1924, the Central Board of Revenue hereby appoints for the areas adjoining, the Land Customs Frontier separatiq.g 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, Bikancr, Ganganagar, Jaisal mer and Jalore in the State of Rajasthan." Held, that tlie 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 Hima chal 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 men tioned 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 wa~ therefore, competent to make the seizure.

' the evidence the story of

Held, further, that on

re covery of gold from the appeilant was true, and that the circum stances, manner, quantity and the form in which gold was carried, clearly . showed . that _the appellan_t was smuggling gold knowingly and with the intention of evading the prohibition in force with respect to the import of gold into the country.

the

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal

No. 152 of 1%2.

710

SUPREME COURT REPORTS

[1964]

1963

Hukma v. State of Raiasthan.

Appeal by special leave from the judgment and order dated April 4, 1%2 of the Rajasthan High Court in D. B. Criminal Appeal No. 505 of 1961.

_

·

·

S. K. Kapur, S. Murthy, B. N. Kirpal and K. K. Jain,

for the appellant.

H. R. Khanna and RR. G. K. Achar for P. D. Menon,

Das Gupta, ].

for the respondent.

.

August 29, 1963. The Judgment of the Court was de

livered by

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r

DAs GuPTA J.-This appeal by special leave is against a conviction and sentence under s. 167 (81) of the Sea the Customs Act, 1878. The appellant was acquitted by 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 s. 167(81) of the Sea Cus toms Act, and sentenced· him to· rigorous imprisonment 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 mur kies. 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 con fiscated and a fine of Rs. 10,000 was imposed on the ap pellant. Criminal proceedings were afterwards instituted against the appellant on the allegation that he had com mitted an offence under s. 167(81) of the Sea Customs Act. The prosecution claimed that under s. 178-A of the Sea that gold was not Customs Act, the burden of proving 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

l·

1963

Huk_ma v. State of Raiasthan.

Das Gupta, /.

4 S.C.R

SUPREME COURT REPORTS

711

the gold knowingly with interit 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 Lal Singh had no authority to search the appellant and seize the gold at the place where the seizure was alleged to have been made. Ac the seizure, if any, cording · to the learned Magistrate, had not been made under the Land Customs Act and so had not been inade under "the Act" within the meaning of s. 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 . autho rity to seize the gold at the place where the seizure was made, and that s. 178-A of the Sea Customs Act 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 s. 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 the accused was Court, had been proved, and therefore, convicted and sentenced as mentioned above. . Three points were raised before us by Mr. S. K. Kapur that the High m support of the appeal. The first was Court was not justified in disturbing the trial court's find ing that the seizure of the gold from the accused had not been proved. Th~ second point urged was that the High Court had fallen mto an error in thinking that Lal Singh h~d authority to seize the gold at the place where the setZure w~s made. The third contention was that in any case even if s. 178-A applied and it was found that the gold to prove the was smuggled, the prosecution had failed neces~ary mens rea in the accused that was necessary to constitute the offence.

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1963

_Hukma v. State .of . Rajasthan.

!(as Gupta, f.

•

712

··SUPREME COURT REPORTS

[1964]

On the question of seizure of gold .from the accused, the prosecution relied on the testimony of Lal Singh him self. Lal Singh gave a detailed a_ccount 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 trou_sers the gold identi fied in court as Ex. P.M. 1-32. The seizure Memo. which he claimed to have prepared at the time of the seizure was marked Exh. P. 3. This document mentions the names of three persons as search witnesses. None of these was examined by the prosecution. The third name men tioned 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. finding has been attacked by Mr.. Kapur as un This 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, learned to support Lal Singh' s evidence. The 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 judgment the the does not 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 that police conducted about th~ search. His evidence . se~rch in the compartment when the train was enroute from Luni to Pali, and that "the police took .search of the

testimony, but unfortunately that

the learned Judges of

indicate

is

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1963

Hukma Y. Slltte of R•i1Sthan.

Dss Gu/Ila, f.

- 1

•.

-

4 S.C.R

SUPREME COURT REPORTS

713

inimically disposed

accused H uk.ma present before the court and of two or three more persons named Kesrimal and Tarachand". The witness added no gold was recovered from the po~­ session 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 com partment. It is not unreasonable to think., therefore, tbat when Poonam Chand is speaking of search in tbe com partment of Hukma and the find of a purse there though stopping short of saying what was recovered from it, his the story given by Lal evidence unwittingly supports Singh about the search and the recovery of tbe gold. It does not stand to reason tbat if two other persons had 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 towards him because on one occasion Lal Singh had asked him to serve water and he had not done it at once. There was no suggestion about this incident to Lal Singh in his cross-examina tion, 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 wit nesses 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 i~ 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 Land Customs Act, taken with the provisions of the Sea Customs Act. The answer to this contention depends on the construction of the notification appoint ing Customs Officers for the areas adjoning the fron tier between West Pakistan and India. The notifi cation as it stands after an amendment in 1956, runs 16-2 S. C. Ind;af64

714

SUPREME COURT REPORTS

[1962]

1963

as follows:-

Hukma

.. ~ St•te of Rajasthan.

Das Gupta, ].

r-

r

.....

" 1. In exercise of the powers conferred by Sub-section ( 1) of section 3 of the Land Customs Act 1924 ( 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 Colkc tor 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 noti fication on a reasonable interpretation gave authority only to the officers of the Districts mentioned in the Schedule those Districts and to function as Customs Officers nowhere else. The trial court appears to have accepted this construction, ahd ·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 ac cused or to seize the gold. The High Court, on the con trary, has taken the view that each of the officers mention ed in the Schedule has been apointed a Customs Officer for the entire area which has "jurisdiction of the Collector of Land Customs, Delhi".

in

In our opinion, this is the correct and only possible construction. Section 3 of the Land Customs Act autho rizes the Central Government to appoint by notification in ~he official gazette one person to be the Collector of Land Customs for any area adjoining a foreign frontier and ipecified in the notification. The section also authorizes

,,

1963

Hukma v. State of Rajasthan.

Das Gupta, /.

1

--,

4 S.C.R

SUPREME COURT REPORTS

715

the Central Government to appoint by a similar noti fication such other persons as it thinks fit to be Customs Officers for the same area. "Foreign frontier" has been defined in s. 2, cl. ( e) of the Act as the frontier separating any foreign territory from any part of India. "Land Cus toms area" has been defined in cl. (g) of the same section as any area adjoining a foreign frontier for which a Col lector of Land Customs has been appointed under s. 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 des cribe 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 Rajas than and Himachal Pradesh and Delhi as one area ad- 1ommg 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 Pun jab, J ammu 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 ext~nds to the States of Punjab, Jammu & Kashmir and Rajasthan and the Union Territories of Hima chal Pradesh and Dellii. It was for this entire area that the collector of Central Excise, Delhi was appointed Col lector 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-

1963

Hukma v. Stllte of Rlljasthan.

Das Gupta, J.

716

SUPREME COURT REPORTS

[1964}

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, Ddhi," 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 s. 3. W c find no justificaticm 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.

-

W c have, therefore, come to the conclusion

that the construction put by the High Court on the notification is right, and Lal 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, the place where the seizure was made, and was therefore competent to make the seizure.

including

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 s. 178-A of the Sea Customs Act. applied, the prosecu tion ha:d still to prove by further evidence that the accused had the mens rea necessary to constitute the offence. Learn ed counsel rightly pointed that while s. 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- the gold cution to prove that the accused was carrying

"· . -1

1963

Hukma v. State of Raiasthan.

Das Gupta, f.

.

l

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4 S.C.R.

SUPREME COURT REPORTS

717

that he was carrying smuggled gold,

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 the provisions of consequence of s. 178-A (the accused has not tried to discharge the lay on him that the gold was not smug burden that gled) the cir cumstances 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 ac cused was carrying the gold knowingly and with the in tention 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 :;m additional circumstance that a pointsman of the Rail way, not expected to have so much gold in his possession, was carryirig the gold which was, as already mentioned in ~ix bloks and 22 bars apart from some small pieces and one pair of murkees. The total quantity was as much as 286 tolas ;md 11 annas, that is, about three kilograms. When :ill these circumstances are taken together, it is not possi- -{ ble 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 s. 167 (81) of the Sea Customs Act 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 esta blish 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 un necesary to consider raised by Mr. H. R. Khanna, who apperaed for the State, that even ~-- > apart from s. 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

further argument

the

718

SUPREME COURT REPORTS

[1964]

1963

is by the recovery of the gold from him.

Hukma v. Stau of Raiasthan.

Das Gupta, f.

1963

August 30

All the points raised in the appeal on behalf of the

appellant fail, and the appeal is, accordingly, dismissed.

Appeal dismissed.

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UNION OF INDIA "· H.C. GOEL (P. B. GAJENDRAGADKAR, K. SuBBA RAo, K. N. W ANCHOO, N. RAJAGOPALA AYYANGAR AND J. R. MuDHOLKAR, JJ.) Civil Service-Disciplinary proceedings-Enquiry-proposal by enquiry officer, if binding on the Government-Order of dismissal based on no evidence-Governrnent acting bona fide--Jurisd£ction of the High Court to inte1"fere-Constitution of India, Arts. 226 (Classification, Control and and 311(1) & Appeal) Rules. t'. 55.

(2)-Civil Services

On a complaint the appellant decided to hold a departmental enquiry against the respondent, suspended him and served a notice calling upon him to show cause \Vhy disciplinary action should not be taken on the follo\ving charges; (i) Meeting the Deputy Director, Administration, C.P.W.D., at his residence without necessary per- r mission, (ii) Voluntarily expressing regret at his not having brought sweets from Calcutta for the Deputy Director's Children, (iii) Of fering a currency note which from size and colour appeared to be a hundred rupee note as bribe \Vith the intention of presuading Deputy Director; Shri Rajagopalan to support his representation regarding his seniority to the U.P.S.C., (iv) violation of Rule 3 of the C. C. B. (Conduct Rules). The respondent tendered his explanation and on enquiry, the charges were not found proved. The appellant considered the enquiry report and provisionally ca1ne to the conclusion that the respondent should be dismissed and ac cordingly issued a second notice against him. The respondent sub mitted his explanation to this notice. At that stage, his case was referred to the Union Public Service Commission. The Con1mission advised the appellant that none of the penalties could be inflicteU on the respondent. The afV'Cllant considered the matter afresh and remitted it back to the commission to reconsider it again. The Com mission, on re-exan1ining the matter adhered to its earlier views

'r<

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