# BALK.RISH.NA CHHAGANLAL SONI v. STATE OF WEST BENGAL

- **Citation:** [1974] 2 S.C.R. 107
- **Court:** Supreme Court of India
- **Decided:** 1973-10-22
- **Case number:** Criminal Appeal No. 73 of 1970
- **Bench:** H. R. Khanna, V. R. Krishna !Yer, Sarkaria
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/balk-rish-na-chhaganlal-soni-v-state-of-west-bengal-6038
- **Pages:** 9

## Headnote

C11ston1s Act 1878 (8 of 1878)-S. 107-"rtny p£>rso11s" and "r111y p/ure''"'
111eanf11g of-Scctlori wheth~r i!PPlies to e.mndnation o/ ac~'sed only.
Defence of I11dia Rule:; 1962-r. 126 P. (2)(ii) if applies to smuggled gold ..
The appellant was prosecuted. f~r possessio~ ,of _gold _bars ~f foreign orisin:
in his shop and a gold bar of 1nd1genous ong1n 1n
hts fes1dence.
He was;
charged under r. 126 1(10) re•d witl> r. 126 P(2)(ii). and r. 126 l(il and
r. 126P(i)(i) of the Defence of India Rules, 1962. The Customs authorities
had recorded a statement of the appellant in which he said that the gold rc--
cov~red from his house represented ornaments given to his wife by his mother.
mehe<l. by her into a bar and kept without his knowledge in the almirnb, the:
key of which v;as wilh him.
·
The appellant was convicted by the trial court.
On appeal he was acquitteJ..
on one charge but the senteiice was sustained on o:her charges ..
It w3.!. contended in this Court that -(i) r .126P(2) (ii) could not apply to
~n1ugglcd gold consistently with the .~iew that declaration of non-ornamr;:n~ gold:
<lid not cover smuggled gold, and (n) that s. 107 of the Customs .-'\ct did not
appl}· to examination of the accused but only to o:her witnesses to be
ques~
tioni::d and hence his statement (Ex. 9) should be excluded.
Dismissing the appeal, and confirming the :-;ente"iice.
HELD: (Per Krishna Iyer and Sarkaria JI) Rule 126P (2) (ii)
penalises
a person who had in his p(lssesion or under his control any quantity of gold
in contravention of any provision of Part XII-A of the RuLs. 'It is not po~sible
to cut back on the width of the language used bearing in mind the purpose of
plenary contri ·I the State wanted to impose on gold and exempt smuggled gold
from th~ exp1C1sion "any qunntity of gold" in that sub~rulc. That construction.·
would stultify the law. There was no doubt that the accustd was in control of
the indigenous gold recovered from his residence and there was no case that a
declaration had b!en made regarding it. It is clear from r.126P(2)\li) that
domestic gold was also subject t'"'l the declaration under this rule.
Its possession·
was dearly an offence.
[113B-C]
Section 107 of the Customs Act is wide in its terms-and is-·cle:irty designed to
facilitate the investigatory process by examination without restriction on person,
place or time.
"Any person" in the section covers every person, including a
suspect and po~ential acct.ised.
These__ words of the statute have to be inter·
oreteJ in the light of the policy and purpose of the law. The object of s. 107·
indicates that while the normal process of enquiry is
facilitated by s.
108,
investigatory emergencies are taken care of by s. 107. Situations may arise where
the failure to qu!stion a ,.,,;itness quickly may mean
irretrievable
loss of a
valuable material and s. 107 meets this need.
The context in which the words
''any pers".ln" occur, the objtct of the provision
and the policy underlyingch. Xl!I assume relevance and become material in the construction of the text.
Nor does the section exclude the Customs House as a venue for such examination.
"Any place'' in the iection obviously means anv place and a cnntrarY
view is untenab1e. This provision is plain,hat an authorised customs official is
entitled to examin(" any person at any time, at any place in the course of
enquiry. [1130-G]
Soch1I and economic offences stand on a graver f~oting in respect of punishment. The new horizons in penal treatment with hopeful hues o[ correct=o11
and rehabilitation are statutorily embodied in Tndia in some special enactments:·
108
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
but crimes professionaly committed by deceptively· respectable 1nembers of the
com.n1unity by inflicting severe trauma QD. the health and wealth of the nation-
.and the members of this neo-crimirial tribe arc rapidly escalating-form a
deterrent exemption to hu1nane softness in sente·ncing. [l 14B; DJ
The penal strategy must be informed by soc

## Text

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BALK.RISH.NA CHHAGANLAL SONI
V.
STATE OF WEST BENGAL
October 22, 1973
107
[H. R. KHANNA, V. R. KRISHNA !YER AND R. S, SARKARIA, JJ.J
C11ston1s Act 1878 (8 of 1878)-S. 107-"rtny p£>rso11s" and "r111y p/ure''"'
111eanf11g of-Scctlori wheth~r i!PPlies to e.mndnation o/ ac~'sed only.
Defence of I11dia Rule:; 1962-r. 126 P. (2)(ii) if applies to smuggled gold ..
The appellant was prosecuted. f~r possessio~ ,of _gold _bars ~f foreign orisin:
in his shop and a gold bar of 1nd1genous ong1n 1n
hts fes1dence.
He was;
charged under r. 126 1(10) re•d witl> r. 126 P(2)(ii). and r. 126 l(il and
r. 126P(i)(i) of the Defence of India Rules, 1962. The Customs authorities
had recorded a statement of the appellant in which he said that the gold rc--
cov~red from his house represented ornaments given to his wife by his mother.
mehe<l. by her into a bar and kept without his knowledge in the almirnb, the:
key of which v;as wilh him.
·
The appellant was convicted by the trial court.
On appeal he was acquitteJ..
on one charge but the senteiice was sustained on o:her charges ..
It w3.!. contended in this Court that -(i) r .126P(2) (ii) could not apply to
~n1ugglcd gold consistently with the .~iew that declaration of non-ornamr;:n~ gold:
<lid not cover smuggled gold, and (n) that s. 107 of the Customs .-'\ct did not
appl}· to examination of the accused but only to o:her witnesses to be
ques~
tioni::d and hence his statement (Ex. 9) should be excluded.
Dismissing the appeal, and confirming the :-;ente"iice.
HELD: (Per Krishna Iyer and Sarkaria JI) Rule 126P (2) (ii)
penalises
a person who had in his p(lssesion or under his control any quantity of gold
in contravention of any provision of Part XII-A of the RuLs. 'It is not po~sible
to cut back on the width of the language used bearing in mind the purpose of
plenary contri ·I the State wanted to impose on gold and exempt smuggled gold
from th~ exp1C1sion "any qunntity of gold" in that sub~rulc. That construction.·
would stultify the law. There was no doubt that the accustd was in control of
the indigenous gold recovered from his residence and there was no case that a
declaration had b!en made regarding it. It is clear from r.126P(2)\li) that
domestic gold was also subject t'"'l the declaration under this rule.
Its possession·
was dearly an offence.
[113B-C]
Section 107 of the Customs Act is wide in its terms-and is-·cle:irty designed to
facilitate the investigatory process by examination without restriction on person,
place or time.
"Any person" in the section covers every person, including a
suspect and po~ential acct.ised.
These__ words of the statute have to be inter·
oreteJ in the light of the policy and purpose of the law. The object of s. 107·
indicates that while the normal process of enquiry is
facilitated by s.
108,
investigatory emergencies are taken care of by s. 107. Situations may arise where
the failure to qu!stion a ,.,,;itness quickly may mean
irretrievable
loss of a
valuable material and s. 107 meets this need.
The context in which the words
''any pers".ln" occur, the objtct of the provision
and the policy underlyingch. Xl!I assume relevance and become material in the construction of the text.
Nor does the section exclude the Customs House as a venue for such examination.
"Any place'' in the iection obviously means anv place and a cnntrarY
view is untenab1e. This provision is plain,hat an authorised customs official is
entitled to examin(" any person at any time, at any place in the course of
enquiry. [1130-G]
Soch1I and economic offences stand on a graver f~oting in respect of punishment. The new horizons in penal treatment with hopeful hues o[ correct=o11
and rehabilitation are statutorily embodied in Tndia in some special enactments:·
108
SUPREME COURT REPORTS
[ 1974] 2 s.c.R.
but crimes professionaly committed by deceptively· respectable 1nembers of the
com.n1unity by inflicting severe trauma QD. the health and wealth of the nation-
.and the members of this neo-crimirial tribe arc rapidly escalating-form a
deterrent exemption to hu1nane softness in sente·ncing. [l 14B; DJ
The penal strategy must be informed by social circumstances. individual
factors and the character of the crime .. Smugglers, hoard rs, ad\llterators and
-0thers of their ilk have been busy in their unticnvorld bcc ... U3C the leμ! h rdW:lre has not been able to halt the ..jnvisible economic aggressor inside.
While
penal trea!nl!nt should be tailored to the individual, in the eXtrem category of
professional economic offenders, incaracera!ion is peculiarly potent The off nces
ior which the appellant has been convicted are typical of respectable rack teers
v.·ho, tempted b/ the heavy pay-off, face the perils of the law and hop~ that
th~y .c:ould smuggle on a large scale and even if struck. by the covrt they could
.Ret away with a light blow.
[114-EFI
To the extent to which gold smugglers and other anti~social operators in the
field. of crime can be given an unhappy holiday .in jail, the courts must b~lp the
pi"ocess en conviction if judicial institu:ions are not to be cynically viewed by
:the community.
[115B]
Per Khanna J : There is nothing in the language of s. "107 to !ndicate that
·the words "any person" do not include. a person who is subsequently ~rraigncd
.as an accuscJ. The exami'n;ttion contemplated bv cl. (b) is of a person acquainted with th:.": facts and circum3tances of a case.
Where a person is found
i" possession of smuggled gold he would obviously b! a person who ca~ be
'.con~idered to be acquainted with the facts and circumstances of the case.
Jn
nwst of the cases be would. indeed be the best person 10 throw light with TC$ftrd
.to tbe ~muggled gold found in his possession. No valid. r~ason ·can be ·dis·
ccrned for excluding the examination ·of such a person from the purview of
·s. ICl7 of the Customs Act. [1098-C]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 73 of
1970.
Appeal from the judgment and order dated th.e 10th December,
1969 of the Calcutta High Court in Criminal Appeal No. 518 of
1969.
D. Mookherjee and D. N. Mukherjee, for the appellant.
P. K. Chatterjee and G. S. Challerjee, for the respondent.
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The Judgments of the Court were delivered by Khanna J. and
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Krish(la Iyer J.-
KHANNA, J.-The facts of the case have been set out in the judgment of my learned brother Krishna Iyer J. and need not be r<peat-
.ed.
Two principal contentions have been raised on behalf of the appel-
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!ant. It is urged in the first instance that the finding that the appe !ant
was in possession of the gold bars with foreign markings reoovered
from his shop and of indigenous gold recovered from his residential
premises cannot be sustained. In tl1is respect J fiad that the trial
-court and the High Court on consideration of the ev'd,nce br>'ug'1t on
record have arrived at the conclusion that the appellant was in possession of the go~d bars and in<ligenous gold in question.
Nothing cogent
H
has been brought to our notice as may justify interferenoe with this
concurrent finding of fact based upon appreciation of evidence.
I,
.therefore reject the first contention.
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8ALKJ\JSHNA v. WEST BENGAL (Krishna Iyer, J.)
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Equally devoid of force is the second contention that the Customs
Officer cannot· under section 107 of the Customs Act, 1962 examine
any person who iS' subsequently arraigned as an accused in respect of
the possession of smuggled gold.
According to clause (b) of section
I 07, any officer of customs empowered in this behalf by general or
special order of the Collector of Customs may, during the course of
any enquiry in connection with the smuggling of any goods, cxanline
any person acquainted with the facts and circumstances of the case.
There is nothing in the language of section I 07 to Indicate that the
words "any person" do not include a person who is subsequently ar·
raigned as an accused.
The language of section 107 is clear and
unambiguous and I find it difficult to place a restricted meaning on the
word> "any person" and to exclude from their ambit persons who may
subsequently be put· up for trial.
The examination ·contemplated by
clause (b) is of a person acquainted with the facts and circumstances
of a case.
Where a person is found in possession of smuggled gold
he would obvious,ly be a person who can be considered to be acquainted
with
the
facts
and
circumstances
of
the
case.
In
most
of
the
cases
he
would indeed
be
the
best
person
to throw light with regard to the smuggl~d gold found in his possession.
I have not been able to disoern any valid reason for excluding the
examination of such a person from the purview of section 107 of the
Customs Act.
There is no sufficient ground for interference with the sentence.
The appeal fails and is dismissed.
KRtSHNA IYER, J.-A white collar crime committed and detected in
January 1965 took a demoralisingly leisurely course spread over 3
years in the trial court although only 21 witnesses were examined and ·
the case was simple and supported by a nearly clinching statement of
the ortly accused recorded fresh after the detection, the very day.
An imp:>rtant component of fair trial is speedy hearing, and the
deterrence of judicial punishment is diluted to the pre.iudice of public
justice if, through dilatory hearings and ineffectual revisions, unfortunate delays, such as mar this case, corrode the system and put the
courts on trial before the community.
The criminal story here is short and the evidence adduocd straight.
The findings of fact are concurrent and the points of law frai!le.
The
case has reached the Supreme Court on a certificate of fitness granted
by the High Court.
One Shri Soni, the appellant herein, was· engagged in bullion business, perhaps of a dubious character, ··because he appears to have
attracted the attention of the customs authorities, who, undaunted by
failure in one raid kept, track of the dealer.
Several months before
the episode which materialised in the present case a fruitless search 0f
the flat of Shri Soni had been made.
But on May 10, 1965 better luck
smiled on P.W. J, a preventive officer of the Departmeqt,. thanks to
110
SUPREME COURT R6PliRTS
( 1974 ) 2 S.C.R.
timely and accurate intelligence received,
pursuant to which the
officer, to the due accompaniment of the fonnalities of the law, movtd
into 59, Manohar Das Street, Calcutta, where the jewellery shop of
the accused was located.
Armed with the authorization for search.
P.W. l surprised the accused who was reclining on a pi~ow, laid on a
mattress, underneath which slept two gold bars with foreign markings.
P.W. I, with uner.ring precision asked the accused to rise in his seat
and the truth was out be£ause the guilty gold bars, bJried beneJth the
innocent pillows and mattress, revealed themselves and were promptly
seized in the presence of independent witnesses, according to the pres·
criptions of the law.
The search list (Ex. 2) set• out the transaction
of recovery.
There is evidence to show that the shop was of the ac·
cused.
The search and seizure, the presene<> of the accused in the
premises, the preparation of the sea'rch mahazar and the foreign origin
of the gold b3rs as betrayed by the tell-tale Q9?0 mark. are not disputed
before us.
The next target of the customs authorities "·as the residential fiat
of the accused.
P.W. 3, a preventive officer of Calcutta Customs.
with the usual retinue of search witnesses, entered the house of the
accused and there met Mrs. Soni, who contacted her husband on the
telephone.
Thereupon, the accused arrived, h:uided over the key of
the almirah from which a gold bar of indigenous origin (Mat. Ex. I I)
was recovered.
These circumstances also are virtually .admitted.
Later
in the day, the same afternoon, the accused was taken to the Customs
House foe interrogation.
What that examination yielded was recorded
in Ex. 7.
Close upon the search and caught almost red·hande<l, the
accused, with little opportunity to invent and left to fall back upon bis
unncrvl.'.'d im:igination. made a clumsy cs:apisJ stntement which cont1ins
damaging implications.
The complaint based on these facts k:d tu a charge. under Rule
126 1(10) of the Defence of India Rules, 1962 read with Rule 126
P(2)(ii) of the said Rules as also one under Rule 126 I(!) read
with Rule 126 P(l)(i}. Since a contravention of s. 135(b) of the
Customs Act, I 962, was also prima facie mado out a charge there·
under was framed.
The case ended in conviction before the Magis·
trate. but in appeal there was acquittal on one charge, but the sentence was sustained on the other charges, the net benefit to • the
accused being the elimination of a flea·bite fine of Rs. 1000/..
The
courts below concurrently relied upon the statement under s. I 07 of
the Cmtoms Act recorded from the accuserl (Ex. 9) and consider.1blc
argun1cnt turned on it in this Court.
Finding Ex. 9 a fatuous exercise in cxio:ulpl:ition but containing sonic
vital facts of incrimination, Shri D. Mukherjea. learned counsel for
the appellant. inevitably but in~cnuously staked
a !Jog argument
on the unrealiability of material elicited under environs of testimonial
pressure and 11crscinal duress and the ina<lmissib;lity of qu'5i-confessions elicited from de facto detainees by investigating offic<'l's who exer·
ciscd powers sub,tantially similar to those of police officers from Cus·
toms House premises.
Confronted by the cliiwt rulings on the point
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SUPREME COURT REPORTS
[ 1974] ·2/s.C.R.
and has been properly done. . T1'ere is other evidell"..e also which justi·
fies the conclusions of facts arn, cd at in tne judgment under appedL
The shop from where the gold was got belongs to the accused's business
and there is evidence for it. The bars "themselves bear on their ·bosom
evidence of smuggled source in the shape of foregin markings. The
circumstances of the recovery not merely deepen the suspicorn1 but
clinch the conclusion.
The guiltless pillows on which the appellant
confidently sat, hid the offending gold and the ·pre-knowing officers uncovered the contraband with a sure instinct and these facts overpower the case of licit possession feigned by the accused. The disingenous explanation regarding the domestic discovery ·of gold· also is ·
hardly plausible.
We aflirm. the findings of fact ..
Appellant's counsel put forward two legal points before he wound
up with the submission for a merciful sentence.
According to him
s. I 07 of the Customs Act does not apply to examination of the delinquent but only to other witnesses emergently to be questioned.
This,
if valid, will exclude Ex. 9 statement, he argues:
Substantively, he
contends that r. 126 P(2) (ii) of the Defence of India Rules, 1962,
cannot apply . to smuggled gold, consistently with the High Court's
view that Rule 126 I relating to declaration of non-ornament gold
does not cover smuggled gold.
To appreciate this part of the ari;ument, we must have a broad understanding of the scheme of Chapter
14-A of the Defence of India Rules which in 1965, when the alleged
offence was committed, regulated the possession, use and sale of~
gold.
(Now these functions are performed by the Gold Control Act).
The procedural provisions of the Customs Act also come into play in
this case and the contcntiuu regarding s. 107 of that Act, under which
Ex. 9 statement was recorded, needs some attention in the background
of Chapter 13 of the Customs Act itself. Since after careful considera-
. tion we find no substan.:e in any of these points, our survey of the
statutory schemes need not be elaborate.
For long years the national economy has been under great stress
and strain and gold racket on any considerable scale particularly during the dangerous years around 1965, was fraught with cripp1ing consequences.
And so the Defence of India Rules, in Part XII A, insisted
on severe
'gold' discipline. Rule
126 I
direct everyone.· other than a licensed refiner and licensed or licensable dealer, to
make a declaration of all non-ornament gold owned by him. Such
persons shall not in future acquire any such gold without permit or .
save as provided in sub-rule (3). ·Many other ~estraints on acquisition
and possession exist.
There are many regulat:ons and prohibitions
with which we are not concerned here.
Dealers have to make returns
of gold in their possession to the concerned authority (Rule 126F).
Th~y have also to keep account of gold bought and sold (R I 26G).
Except as laid down in Rule 126H dealers are prohibited from b~ing
in possession of gold.
Indeed even a person, other than a dealer;
. shall ·not acquire non-ornament gold except as indicated iii Rule 126
H (2 )( d). Certain rebuttable presumptions also are statutorily raised
(vide Rule 126 I(ll)) and large powers of search and seizure ve<ted
in officers to make this restriction effective (Rule 126L). Rule J26P
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SUPRL~[E COURT REPORTS
[ 1974 J 2 S.C.R.
aod hls been properly don~. There is other evidence also which justi·
iic.s tnc con..:lJs1...-n:.; of tacts arr1ved at in tnc juU~1ncnt unJcr af):--ie-.1.
Th~ shop fro1n \\"here the ~:d was get tx!longs tJ t:1e zccuscj~s bus!ncs·:.;
and there is evidence for jt. '"!he bars themselves bear en tl1~ir boso111
<Vidonce of smuggled source in the shape of forcgin mark mg;, lhe
cir=wnstanccs ot the recovery not merely_ deepen th~ SU".pic:on but
clinch the conciusiOil.
The guiltless pillows on which tho oppcJa11t
confidently sat, hid the offending go!d and the pre-knowing onicers uncovered the contraband with a sure instinct and thcso . facts over•
power the case of licit possession feigned by the accused. The disi11gcnous explanation regardi.ng the domestic discovery of gold also is
hardly pllusible. We affirm· the findings of f~ct.
Appellant's counsel put forward two legal points bcrore he wcund
up with the submission for a merciful sentence.
According te> him
s. 107 of the Customs Act does not apply to examination of the delinquent but only to other witnesses emergontly to be questioned. This,
if valid, will exclude Ex. 9 statement; h• a:gu~. Substantively, he.
contends that r. 126 P(2)(ii) of the Defence of India Rules, 1962,
cannot apply to smu!!glcd gold, c;Jnsistcntly \-Vith the High Co~rt's
view that Rule 126 I relating to declaration of con-ornament gold
does not cover smuggled gold.
To apprccioto this po.rt of th.o ar£Ument, ·..vc n1us! have a broad u;1dcrstanding of the sch.:111;: of Chapter
14A of th~ Defence of India Rules which in 1965; when th6 al1cgcd
oifCnce w:i.s committed,. · regulated the possession, USi! and sale of
·. gold.
(Now these functions are performed by the Gold Control Act).
The procedural provL,ions of the Cmtoms Act also come into play in
this case and the contentio.n regarding s. 107 of that Act, under which
Ex: 9 statement was recorded, needs some attontion in the background
of Chapter 13 of the Customs Act itself. Since after careful consideration we find no substance in any of these points. our survey of the
· statu!ory schemes need not be elaborate.
For long years the natiO"nal economy has been u:id~r great stress
.am! strain and gold racket on any considerab'e scale particularly during the dangerous yean around 1965, was fraught with cripp!ing CQDsequcnccs. And so the Defonce 'Of India Rules, in Part XU. A, insisted on
severe
'gold' · discipline. Rule
126 I ·direct every-.
one. other than a liccr.sed refiner and licensed or licensable dealer, to
make a declaration. of all non-ornament gold owned by him. Such
persons shall not in future acquire any such gold without permit or
save as provided in sub:rule (3). Many 9t!Jer restraints on acqu!sition
and _possession exist.
There. are many r;.'gulat:ons and prohibition<;
with which \Ve are not concerned here.
Dealers have to make returns
of gold in their possession to the concerned authority <Rule 12£,F).
They have also to keep account of gold bought and sold (R 12~G).
Except as laid down in Rule 126H dealers arc prnhibited from boing
in pessession. of gold; Indeed even a person,. other than a deoler,
shall not acquire non-ornament gold except as indicated in Rule 126
H(2)(d). Certain rebuttable presumpt!ons also are statutor'ly raised
(vidc Rulo 126 I( I \2 ) and large powers of search and seizure ve<ted
in offi:ers to mab~this restriCtion effective (Rule 126L). Rule 126P
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BALKRISHNA v. WEST BENGAL (Krishna Iyer, J.)
113
creates penalities for many acts and ommissions, inter alia for failure to
make a declaration as laid down. in Rule 126 I. The High Court has
taken the view that the obligation to declare does not cover smuggkd
gold.
Even so, Rule 126 P(2)(ii) penalises a peroon who has in
his possession or under his control any quantity of gold in contraven·
tion of any provision of this Part.
We cannot cut back on the width
of the language used, ·bearing in mind the purpose of plenary control
the State wanted to impose on gold, and exempt smuggled gold from
the expression 'any quantity of gold' in that sub-rule.
That construction will stultify the law.
There is no manner of doubt that the
accused was in control of the indigenous gold recovered from his residence and there is no case that a declaration has been made regarding
it.
That at least this domestic gold was subject to the d,eclaration of
Rule 126 P(2) (ii) can be spelt out without straining language.
Its
possession is clearly an offence, as held by the courts below.
But proof of this depends in good measure on the statement given
by the_ appellant to the Customs Officers the same day under s. 107 of
the Customs Act This provision is wide in its terms and is clearly
designed to facilitate the investigatory process by examination without
D
restriction on person, place or time.
Lest it should be misused the
Jaw is choosy and requires the empowerment of customs officers by
general or special order of the Collector to exercise these larger powers.
Does s. 107 enable the interrogation of even the potential delinquent
or must it~ confined only to witness who throw light oh the delinquent's
contravention of the Jaw
'Any person' in the section certaiuly covers
every person including a suspect and potential accused.
These words
E
of the statute have to be interpreted in the light of the policy and
purpose of the law. "The object of s. 107, located in the neighbour·
hood of s. 108, indicates that while the normal process of enquiry is
facilitated by s. 108, investigatory emergencies are taken care of by
s. 107.
May be situations arise where the failure to question a witness
quickly may mean irretrivable loss of a valuable material and s. 107
meets this need.
The context in which the words "any person" occur,
F
the objr.ct of the provision and the policy underlying Ch. XIII of the
Customs Act assume relevance and become material in the construction
of the text.
Nor are we faced with any difficulty on account of art.
20(3) of the Constitution since the examination is not of an accused
person.
Nor is there any warrant for saying that the section excludes,
as a legal limitation, the Customs House as a venue for such examina,
lion.
'Any place' in the SCftion obviously means any place and a conG
trary view is so untenable !ha< counsel did not seriously urge it,
Indeed,
often times it is more convenient for all concerned to move to the quiet
and convenience of an office for recording statements. A businessman
may be wantonly humiliated if he is arrested and kept in the bazaar and
interrogated at length in the presence of a crowd which is sure to
collect. The pmvision is plain that an authorised Customs official is
entitled to examine •ny person at any time, at any place, .. in the course
H
of an enquiry.
Whether the statement was extracted by threat of
harm, hope of advantage or improper inducement does not concern
us as no such case is made out.
Ex. 9 has been found by the High .
Court to be free from taint. We are not disposed to differ.
9-L447Sur.CI/74
...
\
.•
114
SUPREME COURT REPORTS
[ 1974] 2 S.C.R·
On the proved facts the gold bar is caught in the criminal coils of
s. 135, read with ss. Ill and 123, Customs Act, as the High Court
has found and little has been made out before us to hold to the
contrary.
Guilt being e;tablished, the fifth act of the tragedy is reached.
Social and economic offences stand on a graver footin; in respect of
punishment.
The appellant's advocate pleads in elimination of the
imprisonment that gold of considerable value has been confiscated, that
his client has gone out of business (his licence having been cancelled)
and the possibility of further mischief is absent, seven years of criminal
proceedings have been a long ordeal deterrent enough to inhibit future
anti-social adventures, '1td some jail term he has already undergone.
Counsel submits that bis client will now turn a new leaf if he is not
returned to prison. We decline to be moved by this dubious prospect.
.
A
B
c
The new bariums in penal treatment with hopeful Imes of correction and rehabilitation
are statutorily
embodied -in India in some
special enactments; but crimes professionally committed by deceptively respectable members of the community by inflicting severe trauma
on the health and wealth of the nation-and the members of this neoD
criminal tribe are rapidly escalating-from a deterrent exemption to
huma~e softness in sentencing.
The penal strategy must be informed by social circumstances,
individual factors and the character of the crime. India has been facing
an economic crisis and gold smuggling has had a disastrous impact
on the State's efforts to stabilize the country's economy.
Smugglers
E
hoarders, adulterators and others of their ilk have !Jcen busy in their
under-world because tlte legal hardware has not been able to halt
the invisible economic aggressor inside. The ineffectiveness of prosecutions in arresting the wave of white-collar crime must disturb the
judges' conscience. While we agree that penal treatment should be
tailored to the individaal, in the extreme category of professional
?conomic offenders, incarceration is peculiarly potent. When all
is
F
said and done, the offences for which the appellant has been convicted are typical of respectable racketeers who, tempted by the heavy
pay:uff face the perils of the law and hope that they could. smuggle
on a large scale and even if struck by the court they could get away
with a light blow.
Mr. Justice Abhyankar observed in a Bombay case
(State v.
Drupadi( 1) under s .. 5, Imports and Exports Control Act :-
A serious view must therefore be taken of such offences
which show a distressingly growing tendency. The ar~ument
that the accused comes from a respectabJ, or high family
rather emphasise the seriousness of the malady.
I( members
belonging to high status in life should show scant regard
for the laws of this country which are for public good, for
.protecting our foreign trade or exchange position of currency
(I) A.1.R. 1965 Born. 6, para 11.
G
H
A
B
BAI.KRISHNA v. WEST BENGAL (Krishna Iyer, J.)
115
difficultie~, the consequential punishment for the violation
of such laws must be equally deterrent. The offences against
Export and Import restrictions and customs are of the species
of 'economi~' crimes which must be curbed effectively."
We endorse this approach. It may not be out of· place to notice
in this context the observations of the Central Law Commission( 1)
against light se11tences on the score that; (i) the case is one of first
conviction; (ii) that the matter has been already dealt with by severe
departmental penalty; (iii) that the convicted person is a young man.
To the extent to which gold smugglers and other anti-social operators
in the field of crime can be given an unhappy holiday in jail, the courts
must help the process on conviction, if judicial institutions are not to
be cynically viewed by the community. We confirm the sentence. The
appeal fails and is dismissed.
P.B.R.
Appeal dismissed.
(l) Forty-seventh Report oil "Tl;e Trial and Pulishm~nt of Sccial and Ecc ·
'- nomic Offences".