# JAMATRAJ KEWALJI GOVANI v. THE STATE OF MAHARASHTRA ·

- **Citation:** [1967] 3 S.C.R. 415
- **Court:** Supreme Court of India
- **Decided:** 1967-04-04
- **Bench:** Hidayatullah, s. M. Snau, c. A. VAIDIALINGAM
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jamatraj-kewalji-govani-v-the-state-of-maharashtra-4061
- **Pages:** 10

## Headnote

.Criminal Procedure Code, 1898,
s. 540-wltness called by court at
imtance of prosecution after defence case closed-witness deposing to
reasonable belief necessary under s. 123, Customs Act, 1962, for offence
under s. 135 that goods were smuggled-whether calling such witness at
that stage permissible-whether essential for just decision in the case.
Upon a .warrant issued under s. 105 of the Customs Act, 1962, the
appellant&' shop was searched and a number of watches, clocks, etc.,
were seized.
As he could not prove that the
goods had borne the
necessary
customs duty, the appellant was prosecuted on two counts
under ss. 135(a) and
135(b)
of
the
Customs
Act,
1962. Tho
appellant did not leod any evidence in his own behalf.
He filed a
Written statement in which he claimed, inter alla, that no offence had
been disclosed against him as under 1, 123 of the Act the burden
would have been on him to prove that the1 aoods had been customed
provided the aood• bad been aelzed under the Act In the reasonable
belief that they were 1mugled aood1 but 110 witness bad depo1ed to
1uch belief. The day after thl1 statement was !lied,
the pr01ecutlon
applied for the e11mlnaUon of the Customs Ofllcer who waa In charge
of the aearob u a court wltne11 In the Interest of justice.
Although
tbl1 application was opposed by the appellant, the Magistrate ordered the
examination of the olllcer under s. 540 of the Code in tho cour1e of
which be stated that he bad seized tho watchea in the reasonable belief
that they were smuggled. The appellant was. thereafter examined again
and was given an opportunity to lead defence evidence but he stated that
be had nothing further to add and no evidence to lead. The trial court
then convinced the appellant under Sections !35(a)
and 13S(b), An
appeal to the High Court against this conviction was dismissed.
In the appeal to this Court by spel'ial leave, the question for deter·
minatlon was whether the evidence of the otllcer was improperly
nceived by the Magi1trate and whether if excluded tlie conviction of
Ibo appellant could be supported.
It was contended on beb'alf ot the appellant that the powers under
1. 540, hoWt!Ver wide, mull be reconciled- with the mandatory requirements of Chapter 21 laylna down the J)fOCedure of trial of warrant
Cl* by Maai1trate1 and that as the trial had aone throuab the varloua
1tapa and had reached the 1tapa of 1. 258, the court could either acquit or
oonvlot him; It w11 therefore 1ubmltted that the Matlatrate bad really al·
lowtd the pl'OllCluUon to flll a pp In the cue wblcb bad the elect of
dl1Mn1in1 With the burden which was 011 tbe proaecutlon to prove the ca1e
under u. 135(a)
and (b) of the Cuatomt Act and of placing the
burden upon the appellant to rebut the presumption that the goods were
amugled;
HELD : Dismissing the appeal,
The contention that Chapter 21 must limit the powers under Section
S40 must be rejected. Offences under the Code of Criminal Procedure are
416
SUPREME COURT REPORTS
(1967) 3 S.C.R.
tried in different ways according to their gravity. The trials in the Magis·
trate's courts, the High Courts and Courts of Session as well as summary
trials have their procedure laid down from one step to another till the state
is reached for acquittal or conviction. If the argument advanced on the
basis of the procedure laid down in Chapter 21 was 1X> be accepted, there
would be no room for the exercises of the power under s. 540 because it
would always be impossible to fit it into any chapter without doing
violence to the sequence established there. [419H-420B)
In the present case the trial Judge appeared to have exercised power
conferred on him under the second part of section 540 I.e., to admit the
evidence of the officer as essential to the just decision of the case. As the
Section stands, there is no limitation on the power of the court arisin,1
from the stage to which the trial may have reached provided the court 11
bona fide of the opinion that for the just decision of the cas

## Text

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JAMATRAJ KEWALJI GOVANI
v.
THE STATE OF MAHARASHTRA
· April 4, 1967
[M, HIDAYATULLAH, s. M. Snau AND c. A. VAIDIALINGAM, JJ.J
.Criminal Procedure Code, 1898,
s. 540-wltness called by court at
imtance of prosecution after defence case closed-witness deposing to
reasonable belief necessary under s. 123, Customs Act, 1962, for offence
under s. 135 that goods were smuggled-whether calling such witness at
that stage permissible-whether essential for just decision in the case.
Upon a .warrant issued under s. 105 of the Customs Act, 1962, the
appellant&' shop was searched and a number of watches, clocks, etc.,
were seized.
As he could not prove that the
goods had borne the
necessary
customs duty, the appellant was prosecuted on two counts
under ss. 135(a) and
135(b)
of
the
Customs
Act,
1962. Tho
appellant did not leod any evidence in his own behalf.
He filed a
Written statement in which he claimed, inter alla, that no offence had
been disclosed against him as under 1, 123 of the Act the burden
would have been on him to prove that the1 aoods had been customed
provided the aood• bad been aelzed under the Act In the reasonable
belief that they were 1mugled aood1 but 110 witness bad depo1ed to
1uch belief. The day after thl1 statement was !lied,
the pr01ecutlon
applied for the e11mlnaUon of the Customs Ofllcer who waa In charge
of the aearob u a court wltne11 In the Interest of justice.
Although
tbl1 application was opposed by the appellant, the Magistrate ordered the
examination of the olllcer under s. 540 of the Code in tho cour1e of
which be stated that he bad seized tho watchea in the reasonable belief
that they were smuggled. The appellant was. thereafter examined again
and was given an opportunity to lead defence evidence but he stated that
be had nothing further to add and no evidence to lead. The trial court
then convinced the appellant under Sections !35(a)
and 13S(b), An
appeal to the High Court against this conviction was dismissed.
In the appeal to this Court by spel'ial leave, the question for deter·
minatlon was whether the evidence of the otllcer was improperly
nceived by the Magi1trate and whether if excluded tlie conviction of
Ibo appellant could be supported.
It was contended on beb'alf ot the appellant that the powers under
1. 540, hoWt!Ver wide, mull be reconciled- with the mandatory requirements of Chapter 21 laylna down the J)fOCedure of trial of warrant
Cl* by Maai1trate1 and that as the trial had aone throuab the varloua
1tapa and had reached the 1tapa of 1. 258, the court could either acquit or
oonvlot him; It w11 therefore 1ubmltted that the Matlatrate bad really al·
lowtd the pl'OllCluUon to flll a pp In the cue wblcb bad the elect of
dl1Mn1in1 With the burden which was 011 tbe proaecutlon to prove the ca1e
under u. 135(a)
and (b) of the Cuatomt Act and of placing the
burden upon the appellant to rebut the presumption that the goods were
amugled;
HELD : Dismissing the appeal,
The contention that Chapter 21 must limit the powers under Section
S40 must be rejected. Offences under the Code of Criminal Procedure are
416
SUPREME COURT REPORTS
(1967) 3 S.C.R.
tried in different ways according to their gravity. The trials in the Magis·
trate's courts, the High Courts and Courts of Session as well as summary
trials have their procedure laid down from one step to another till the state
is reached for acquittal or conviction. If the argument advanced on the
basis of the procedure laid down in Chapter 21 was 1X> be accepted, there
would be no room for the exercises of the power under s. 540 because it
would always be impossible to fit it into any chapter without doing
violence to the sequence established there. [419H-420B)
In the present case the trial Judge appeared to have exercised power
conferred on him under the second part of section 540 I.e., to admit the
evidence of the officer as essential to the just decision of the case. As the
Section stands, there is no limitation on the power of the court arisin,1
from the stage to which the trial may have reached provided the court 11
bona fide of the opinion that for the just decision of the case steps autho·
rised by the Seetion may be taken. [420D·El
It was obvious that a just decision in the present case required findine
whether the watches, etc., seized were smuggled or not. The circumstances
already on record clearly established that some one mmt have sel7.ed the
watches entertainin~ a belief that they were smuggled and this belief obviously was entertained by the Officer in charge of the search. This wu
not a case in which the prosecution was trying tx> fill a gap in Its case. The
court was right in thinking that a just decision of the case required that the
nature and the plea underlying se12ure should be before it on oath of the
person making the seizure so that the appellant might be required, as the
policy of the Customs Act, 1962 requires, t.o prove his innocent poases·
sion. [423F·HJ
Case law discussed.
CRIMINAL APPELLATE Juruso1cr10N : Criminal Appeal No.
217 of 1966.
Appeal by special leave from the judgment and order dated
September 16, 1966 of the Bombay High Court in Criminal Appeal
No. 1349 of 1965.
R. lethamalani, N. H. Hingorani and K. H/ngorani, for the
appellant.
D. R. Prem and S. P. Nayyar, for the respondent.
The Judgment of the Court was delivered by
Hidayatullah, J. On November 16, 1964, the shop of the ap·
pellant Govani situated in Suklaji Street, Bombay was searched
by the Enforcement Branch of the Reserve Bank of India. Noth·
ing incriminating from the point of view of the Reserve Bank was
found in the shop but a large number of watches, clocks, cigarette
lighters, cameras, transistors, tape recorders, etc., were found. The
officers of the Enforcement Branch appear to have informed the
customs authorities. The Assistant Collector of Customs thereupon
issued a warrant for the search of the premises under s. 105 of
the Customs Act, 1962. This warrant was made out in the name
of Preventive Additional Chief Inspector R. C. Dutta, Preventive
Inspector P. N. Ramchandani ancJ Preventive Officers Ranade,
Thakur and Menon. It was stated in the warrant that there were
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KEWALJI v. MAHARASHTRA (Hidayatullah, 1.)
412
reasons to believe that prohibited and dutiable goods liable to confiscation and documents and things useful for and relevant to the
proceedings were secreted in the shop. The officers were accordingly charged with the duty to search and seize such prohibited and
dutiable goods, documents and things in the shop under s. 110
of the Act. The search was effected and the goods abovementioned
were seized. Some of the watches were returned as they were old
and given for repairs. The other watches were seized. Proceed·
ings for the confiscation of the goods and for penalties were started
by Dutta and a summons under s. 108 of the Act was issued to
Govani. He could not prove that the goods had borne the necessary customs duties. The Additional Collector of Customs, Bombay thereupon sanctioned his prosecution under s. 135(b) of the
Act.
The trial took place before the Presidency Magistrate (19th
Court), Bombay.
Govani was charged on two counts,
under
s. 135(a) ands. 135(b) of the Customs Act, 1962. Two witnesses were examined at the trial. Preventive Officer, Customs, Ranade
deposed to the seizure of the goods. As the search was under the
direction of Dutta, Ranade admitted in cross-examination that he
was told by Dutta that information had been received that Govani
had secreted some contraband articles in his shop. He admitted
that Dutta decided which of the watches were to be seized and
which were to be released. Ranade, however, stated that he had
asked Govani to produce bills regarding the watches but Govani
produced none. He had also asked Govani to produce the account
books but Govani again did not produce any. The second witness
Nanvani only proved the seizure of the contraband ·goods and the
exhibits in the case. He was not cross-examined.
Govani did not lead any evidence in his own behalf. He was
examined under s. 342 of the Code of Criminal Procedure and
admitted that he had neither imported the watches nor paid customs duty on them. He stated that he had purchased the watches
from certain customers, sometimes one and sometimes two or
three from the same customer. He had no defence evidence to
lead but filed a written statement and claimed that no offence had
been disclosed· against him in the prosecution case as laid before
the court.
He analysed s. 135 of the Act and stated that the
gist of the offence was that he should have known or have had
reason to believe that the contraband goods had not been customed.
He stated that under s. 123 of the Act, the burden would have been
on him to prove that the goods had been customed provided the
goods had been seized under the Act in the reasonable belief that
they were smuggled goods but no witness had deposed to such
belief. This statement was filed on July 15, 1965. The following
day, the prosecution applied for the examination of Dutta, Inspector
of Customs, Bombay as a court witness in the interests of justice.
418
SUPREME COURT REPORTS
(1967) 3 S.C.R.
This application was opposed by Govani. The Magistrate, however, by his order dated July 2~ 1965, ordered the examination
of Dutta under s. 540 of the code. Dutta stated that he had
seized the watches in the reasonable belief that they were smuggled.
Govani was thereafter examined again and was given an opportunity to lead defence evidence. He stated that he had nothing
further to add and no defence evidence to lead. The Magistrate.
after considering the arguments, convicted Govani under ss. 135(a)
and 135(b) of the Customs Act awarding him a sentence of one
year's rigorous imprisonment arid a fine of Rs. 2,000/- (in default,
further rigorous imprisonment for six months) on each of the two
counts. The watches were also ordered to be confiscated.
Govani appealed to the High Court. His main contention was
that the evidence of Dutta was improperly received by the Magistrate and should be excluded from consideration. The High Court
rejected these contentions and accepting the testimony of the witnesses on facts, upheld the convinction. Govani now appeals to this
Court by special leave. The grant of special leave is limited to
the questions whether the evidence of Dutta was improperly received
by the Magistrate and whether, if excluded, the conviction of
Govani can be supported.
The question ·falls to be considered under s. S40 of the Code
of Criminal Procedure. That section is to be found in Chapter
46 of the Code among several others which have been appropriately described in the heading to the chapter as 'miscellaneous'.
It provides :
"s. 540 : Any Court may, at any stage of any inquiry, trial or other proceeding unaer this Code, summon any person as a witness, or examine any person in
attendance, though not summoned as a witness, or recall
and re-examine any person already examined; and the
Court shall summon and examine l)r recall and reexamine any such person if his evidence appears to it
essential to the just decision of the case."
The section gives a power to the court to summon a material
witness or to examine a person present in court or to recall a
witness already e:tamined.
It confers a wide discretion on the
court to act as the exigencies of justice require. Another aspect
of this power and complementary to it is to be found in s. 16S
of the Indian Evidence Act which provides :
"s. 16S : The Judge may, in order to discover or to
obtain proper proof of relevant facts, ask any question
he pleases, in any form, at any time, of any witness,
or of the parties, about any fact relevant or irrelevant;
and may order the production of any document or
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KEWALJI v. MAHARASHTRA (Hidayatul.ah, J.)
419
thing; and neither the parties nor their agents shall be
entitled to make any objection to any such question or
order, nor, without the leave of the Court, to crossexamine any witness upon any answer given in reply to
any such question :
These two sections between them confer jurisdiction on the Judge
to act in aid of justice .
The Presidency Magistrate, Esplanade, in, dealing with the peti·
tion to call Dutta passed an order on July 26, 1965 in which he
remarked that there was no gap or lacuna in the prosecution case
to fill because Dutta was named as one of the witnesses and as the
officer who bad seized the watches. He held that the evidence of
Dutta was necessary for the just decision of the case. He accord·
ingly granted leave for the examination of Dutta. In view of the
fact that he spoke .in the language of the second part of s. 540,
it is reasonable to think that he exercised the powers conferred on
him under the second part although his order is not clear as to
which part be had in mind. He, however, ruled that Govani would
be further examined under s. 342 of the Code of Criminal Pro·
cedure and allowed to lead further evidence. This action of the
Magistrate which was approved by the High Court, is challenged
before us.
It is submitted that the powers under s. 540, however wide,
must be reconciled with the mandatory requirements of Chapter
21 laying down the procedure of trial of warrant cases by Magistrates. It is pointed out that the trial bad gone through the stage of
taking evidence for the prosecution (s. 252), framing of the charge
(s. 254), recording of the plea (s. 255) and the defence (s. 256)
of the accused and as Govani did not wish to lead evidence (s.
257), it bad reached the stage of s. 258 and the court could either
acquit or convict him. It is, therefore, submitted that the Magistrate had really allowed the prosecution to fill a gap in the case
which had the effect of dispensing with the burden which was on
the prosecution to prove the case under s. 135(a) and (b) of the
Customs Act and of placing the burden upon Govani to rebut the
presumption that the goods were smuggled.
This, it is said, is
not only unfair but unjust and cannot be regarded as falling within
the powers of the court, however, wide the language of the section.
We shall consider these objections and refer to the rulings which
were cited before us in support of them.
To begin with, we do not accept as sound the argument that
Chapter 21 must limit the powers under s. 540. Offences under
the Code of Criminal Procedure are tried in different ways according to their gravity. There are thus trials of summons and warL S Sup,C.l./67-13
420
SUPREME COURT REPORTS
(1967) 3 S.C.R.
rnnt cases by Magistrates, trials before High Courts and Courts of
Session and summary trials. All these trials have their procedure
laid down from one step to another till the stage is reached for acquittal or conviction. If the argument advanced on the basis of
the procedure laid down in Chapter 21 is accepted there would be
no room for the exercise of the power under s. 540 because it
would always b: impossible to fit it into any chapter without
doing violence to the sequence established th.ere.
Section 5<'f0 is intended to be wide as the repeated use of the
word 'any' throughout its length clearly indicates. The section is
in two parts.
The first part gives a discretionary power but the
latter part is mandatory. The use of the word 'may' in the first
part and of the word 'shall' in the second firmly establishes this
difference.
Under the first part, which is permissive, the court
may act in one of three ways : (a) summon any person as a witness, (b) examine any person present in court although not summoned, and (c) recall or re-examine a witness already examined.
The second part is obligatory and compels the Court to act in
these three ways or any one of them, if the just decision of the
case demands it. As the section stands there is no limitation on
the power of the Court arising from the stage to which the trial
may have reached, provided the Court is bona fide of the opinion
that for the just decision of the case, the step must be taken. It
is clear that the requirement of just decision of the case does not
limit the action to something in the interest of the accused only.
The action may equally benefit the prosecution. There are, however, two aspects of the matter which must be distinctly kept apart.
The first is that the prosecution cannot be allowed to rebut the
defence evidence unless the prisoner brings forward something suddenly and unexpectedly. This was laid down by Tindal, C.J. in
words which are oft-quoted :
"There is no doubt that the general rule is that where
the Crown begins its case like a plaintiff in a civil suit,
they cannot afterwards support their case by calling fresh
witnesses, because they are met by cartain evidence that
contradicts it. They stand or fall by the evidence they
have given.
They must close their case before the defence begins; but if any matter arises ex improviso, which
no human ingenuity can foresee, on the part of a defendant in a civil suit, or a prisoner in a criminal case, there
seems to me no reason why that matter which so arose
ex improviso may not be answered by contrary evidence
on the part of the Crown." (Reg. v. Frost)(').
There is, however, the other aspect namely of the power of the
Court which is to be exercised to reach a just decision. This power
(1) 4 St. Tr. (N.S.) 85 at 386.
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KBWALJI v. MAHARASHTRA (Hidayalullah, I.)
421
is exercisable at any time and the Code of Criminal Procedure
clearly so states. Indeed as stated by Avery J. in Rex v. Dora
Harris(1) :
"The cases of Reg. v. Chapman (8 C & P. 558) and
Reg. v. Holden (8 C & P. 606) establish the proposition
that the presiding judge at a criminal trial has the right
to call a witness not called by either the prosecution or
the defence, if in his opinion this course is necessary in
the interests of justice. It is true that in none of the
cases has any rule been laid down limiting the point in
the proceedings at which the judge may exercise that
right."
However the learned Judge points out that injustice is possible
unless some limitation is put upon the exercise of that right and
he adopts for that purpose the rule laid down by Tindal, C.J. in
Reg. v. Frost( 2 ) even in those cases where a witness is called by
the Judge after the case for the defence is closed, and states, "that
the practice should be limited to a case where the matter arises eximproviso, which no human ingenuity can foresee, on the part of
a prisoner, otherwise inj'llstice would ensue" and cites the case of
Reg. v. Haynes(•) where Bramwell B. refused to allow fresh evidence to be gone into after the close of the whole case. In Dora
Harris's(') case, five persons were tried, two for stealing and they
pleaded guilty and three others for receiving who pleaded not
guilty. The first two remained in the dock and the trial proceeded
against the other three. They gave evidence on their own behalf
and the prosecution case was not quite strong. The Recorder then
asked one of the other two accused to give evidence and allowed
the prisoner Dora against whom the evidence went to cross-examine him but did not ask Dora to enter the box again to contradict
the new evidence. This was held by the Court of Criminal Appeal
to be a wrong exercise of the power of the Court. It was an extreme example of the exercise of the power.
Mr. Jethmalani relies strongly upon this case and cites several
decisions of the High Courts in India in which this dictum was
applied. In particular he relies upon In re K. V. R. S. Mani('),
Shreelal Kajaria v. The State(•) and In re V. Mahadevan(').
In these cases it is laid down that the powers under s. 540 of the
Code of Criminal Procedure, wide though they may be, must not
be exercised to the disadvantage of the accused, particularly after
his defence is over.
There is nothing new in these cases. They follow in. essence
the decision in Reg. v. Frost( 2 ) as applied in Dora Harris(') case.
(I) [1927) 2 K.B. 587 at 594,
(2) 4St. Tr, (N,S.) 85 at 386.
(3) [l8l91 I F. & F. 666,
(4) l.L.R. [1951] Mad. 986.
(S) l.L.R. [1963] Bom. 698.
(6) (1964) 2 M.L.J 581.
422
SUPRl!MB COURT RBPORTS
[1967] 3 S.C.R.
On the other side reliance is placed upon ~n re K, K. Narayanan
Nambiar('), State v. Sheikh Mohamad Abdullah and others('),
Ratnakar Das v. The State and others(") and Ramjeet and others
v. State(') among others in which a liberal interpretation in favour
of the court's powers is placed upon the section.
It is not necessary to refer to the cases cited on either side.
They illustrate the application of the general principle spoken to by
AvoryJ. in the extract from Dora Harris(') case and the condition
laid down in Reg. v. Frost(•) Dora Harris and Reg. v. Frost cases
involved rebuttal of the defence evidence.
In neither case was
there any unexpected move by the prisoner and the evidence was
therefore, wrongly admitted. It is difficult to limit the power
under our Code to cases which involve something arising
eximproviso which no human ingenuity could foresee, in the course
.of the defence. Our Code does not make this a condition of the
exercise of the power and it is not right to embark on judicial
. legislation.
Cases that go that far are of course not quite right.
Indeed they could be decided on fact because it can always be
seen whether the new matter is strictly necessary for a just decision
and not intended to give an unfair advantage to one of the rival
sides. Even in England where the rule in Dora Harris(") case obtains, the powers of the Court have not been held to be wrongly
exercised, when fresh evidence has been let in for a just decision.
In William Sullivan(') rebutting evidence was held to be properly
called when the accused put forward a suggestion which could not
have been foreseen and in John Mckenna ( •) it was held that a
judge had complete discretion whether a witness should be
recalled and that the Court of Criminal Appeal would not interfere llllless it was made to appear that injustice had been caused.
In that case (like the one here) the defence had closed the case
and the accused had submitted that there was no case to go to
the jury.
It would appear that in our criminal jurisdiction, statutory law
<:onfers a power in absolute terms to be exercised at any stage of
the trial to summon a witness or examine one present in court or
to recall a witness already examined, and makes this the duty and
obligation of the Court provided the just decision crf. the case demands it. In other words, where the court exercises the power
under the second part, the inquiry cannot be whether the accll6ed
has brought anything suddenly or unexpectedly but whether the
court is right in thinking that the new evidence is needed by it for
a just decision of the case. If the court has acted without the
requirements of a just decision, the action is open to criticism but
(I) A.I.R. 1942 Mad. 223.
(21 [1964] 2 Cr. L.J. 88.
(3) A.I.R. 1966 Orissa 102.
(4) I.L.R. (1958] All. 52.
(5) (1927) 2 K.B. 587 at 594.
(6) 4 St. Tr. (N.S. l 85 at 386.
(7) (1922) 16 Cr. App. R. 121.
(8) (1956) '40 Cr. App. R. 65.
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if the court's action is supportable as being in aid of a just decision
the action cannot be regarded as exceeding the jurisdiction.
In the present case the position is this. In 1955, by a notification under the Imports and Exports (Control) Act, 1947, the import
of watches, clocks and parts thereof except under a licence was
completely stopped [Notification No. 17/1955 dated December 7,
1955 known as Imports (Control) Order, 1955]. Govani was found
on November 16, 1964 to be in possession of 305 watches of
foreign make. The warrant of search issued by the Assistant Collector of Customs recited :
"Whereas there are reasons to believe that prohibited
and dutiable goods liable to confiscation. . . . are secreted in ...... Premises of Shri G. K. Gowani, Shop No.
20, Suklaji Street, Bombay, etc."
The watches (among other articles) were seized by Dutta.
He
separated the old watches from the new and asked to see any document which would show that the watches were legitimately imported.
Govani produced no document although a summons under
s. I 08 of the Customs Act, 1962 was served upon him. The watches were, therefore, seized. There was evidence to show that in 1963
1,300 watches were seized from Govani's locker in a safe deposit
vault but the prosecution then had resulted in acquittal. The Mngistrate and the High Court were of opinion that these circumstances
might lead to a reasonable belief in the mind of the person seizing
the watches, that they were smuggled. The prosecution examined
Ranade, Prevention Officer, Customs who had assisted at the search
but failed to examine Dutta who seized the watches and under
whose direction the search was conducted. The question was why
were the watches seized ? They were obviously not seized because
they were stolen property or belonged to some other person. They
were seized after search on a warrant which expressed the belief
that they were smuggled and after affording Govani an opportunity
by notice to explain his possession. It is obvious that the just decision of the case required a finding whether they were smuggled or
not. The circumstances already deposed to by Mukund Ranade
and otherwise on the record clearly established that someone must
have seized the watches entertaining a belief that they were smuggled. This belief obviously was entertained by Dutta. This was not
a case in which the prosecution was trying to fill a gap in the pro-
~ution case.
The. court was right in thinking that a just decist?'I of 1he case required th~t the nature of the belief underlying the
H
se!zure should be be_for~ 1t on oath of the person making the
SCtZUre so that Govam might be required, as the policy of the Customs Act, 1962 requires, to prove his innocent possession. Govani
had really no defence in view of the Control Order of 1955 and
the gap of time between the promulgation of the order and the
424
SUPREME COURT REPORTS
[1967] 3 S.C.K.
date of the seizures. He admitted this before and after Dutta's
A
evidence. In these circumstances it cannot be said that the court
had exceeded its jurisdiction in acting under the second part of
s. 540 of the Code of Criminal Procedure.
As Dutta's evidence
was rightly taken and gone into, and as Govani had no defence
beyond taking advantage of the inadvertent omission, the defence
had no merit. The conviction was, therefore, rightly reached.
B
The appeal fails and is dismissed.
R.K.P.S.
Appeal dismissed.