# JETIIAMAL PITHAJI v. THE ASSISTANT COLLECTOR OF CUSTOMS BOMBAY AND ANR

- **Citation:** [1974] 1 S.C.R. 645
- **Court:** Supreme Court of India
- **Decided:** 1973-09-10
- **Case number:** Criminal Appeal No. 48 of 1970
- **Bench:** H. R. Khanna, A .. Alagiriswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jetiiamal-pithaji-v-the-assistant-collector-of-customs-bombay-and-anr-6015
- **Pages:** 5

## Headnote

645
Sea Customs 4ct (8 of 1878), s. 167(81)-l'tatement to customs officer
contai11i11g inculpatory and exculpator:y statements-If inculpatory porrion can
be relied on for con1'iction.
The appellant, a goldsmith, was convicted
under s.
167(81) of the Sea
Customs Act, 1878, in that he was in possession of gold bars with foreign
markings. The evidence aga~nst him consisted of his statement recorded by the
customs officer and the evidence of the sub-inspector of police who seized the
gold bars from him.
Jn his sta!ement to the customs
officer the
appellant
stated that he was duped by another who left the bag with him and that it was
only when he took the bag to his room that he discovered that it contained bars
of g'Jld, and that the bag was found in his room.
The Magistrate framed the charge against the accused after cxamini.ng the
cus~oms officer and the sub_·ir~spec'.or. The sub-inspector
was
also
crossexamined after the charge was fran;i.ed; but when he was
called for further
custorr1S officer and the sub-inspector.
The
sub-inspector was
also
crossgolr! bars were found in the room but that the accused was not present when
they were seized.
The trial court found that the statement of the police officer made in further
cross exa1nination after framing the charge was untrue and
relying
on
the
evidence given by him earlier convicted the appellant.
The High Court, in
maint'-.ining the conviction, also relied upon the statement of the <lppellant to
the customs_ officer.
·oismissing the appeal to this Court.
HELD : (I ) If the Court. finds the exculpatory part of the statement ·Of
the accused to be inherently improbable, there is no reason why the other part
of the statement which implicates the accused and which the court sees
no
rCason to disbelieve should not be accepted. In the present case _the inculpatory
part of statement of the accused to the Cl,lStoms officer is distinct and severable
from the exculpatory part. It is very difficult to believe the version of the
accused that he was duped and the remaining part of the statement
clearly
implicates him. [647H; 648G-H; 649A-B]
Nisl1i Kant Jha v. State of Bih<r, [1969] 2 S.C.R. 1033, followed.
(2) As regards the evidence of _the sub-inspector there is no cogent reason
for disbelixing 'his earlier version.
He changed his version to spite the prosecution because, after his earlier version and before he was called for further
cross-examination, he was compulsorily retired as a measure of punishm~nt.
[647 D-E]

## Text

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JETIIAMAL PITHAJI
v.
THE ASSISTANT COLLECTOR OF CUSTOMS
BOMBAY AND ANR.
September 10, 1973
[H. R. KHANNA AND A .. ALAGIRISWAMI, JJ.]
645
Sea Customs 4ct (8 of 1878), s. 167(81)-l'tatement to customs officer
contai11i11g inculpatory and exculpator:y statements-If inculpatory porrion can
be relied on for con1'iction.
The appellant, a goldsmith, was convicted
under s.
167(81) of the Sea
Customs Act, 1878, in that he was in possession of gold bars with foreign
markings. The evidence aga~nst him consisted of his statement recorded by the
customs officer and the evidence of the sub-inspector of police who seized the
gold bars from him.
Jn his sta!ement to the customs
officer the
appellant
stated that he was duped by another who left the bag with him and that it was
only when he took the bag to his room that he discovered that it contained bars
of g'Jld, and that the bag was found in his room.
The Magistrate framed the charge against the accused after cxamini.ng the
cus~oms officer and the sub_·ir~spec'.or. The sub-inspector
was
also
crossexamined after the charge was fran;i.ed; but when he was
called for further
custorr1S officer and the sub-inspector.
The
sub-inspector was
also
crossgolr! bars were found in the room but that the accused was not present when
they were seized.
The trial court found that the statement of the police officer made in further
cross exa1nination after framing the charge was untrue and
relying
on
the
evidence given by him earlier convicted the appellant.
The High Court, in
maint'-.ining the conviction, also relied upon the statement of the <lppellant to
the customs_ officer.
·oismissing the appeal to this Court.
HELD : (I ) If the Court. finds the exculpatory part of the statement ·Of
the accused to be inherently improbable, there is no reason why the other part
of the statement which implicates the accused and which the court sees
no
rCason to disbelieve should not be accepted. In the present case _the inculpatory
part of statement of the accused to the Cl,lStoms officer is distinct and severable
from the exculpatory part. It is very difficult to believe the version of the
accused that he was duped and the remaining part of the statement
clearly
implicates him. [647H; 648G-H; 649A-B]
Nisl1i Kant Jha v. State of Bih<r, [1969] 2 S.C.R. 1033, followed.
(2) As regards the evidence of _the sub-inspector there is no cogent reason
for disbelixing 'his earlier version.
He changed his version to spite the prosecution because, after his earlier version and before he was called for further
cross-examination, he was compulsorily retired as a measure of punishm~nt.
[647 D-E]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
48
of 1970.
Appeal by special leave from the judgment and order dated 16th
January, 1970 of the Bombay High Court in Criminal Appeal No. 694
of 1968.
S. V. Gupte and R. B. Dattar, for t~ appellant.
Gobind Das and S. P. Nayar, for respondent No. I.
646
SUPREME COURT REPORTS
[197-"· l 1 s.c.R.
B. N. Lokur and S. P. Nay(lf, for respondent No. 2.
The Judgment of the Court was delivered by
KJIANNA, J .-This appeal by special leave is against the judgment
of the Bombay High Court affirming on appeal the conviction of the
appellant under section 167(81) of the Sea Customs Act and the
A
sentence of rigorous· imprisonment for two years.
B
The prosecution case is that on August 17, 1961 Sub Inspector
Sahani of the Railway Preventive Section, on receipt of ~ome info_rmation, went to room No. 2 on the second floor of Bon C)iawl m
the 13th lane, Kamathipura, Bombay.
The accused was found present there, holding a bag.
The said bag was taken into possession
by the Sub Inspector and was found to COiltain 25 bars of gold,
weighing ten tolas each, of the value of Rs. 78,400/. The bars had
C
foreign markings. The Sub Inspector arrested the accused for an
offence under section 124 of the Bombay Police Act. As the articles
recovered from the accused consisted of gold bars with foreign markings, the matter was entrusted to the Customs Officer H. C. Advani
(PW 2). The gold bars too were handed over to Advani.
Advani
recorded statement Ex. A of the accused. A complaint was thereafter filed against the accused by the Assistant Collector of Customs
D
on the allegation that the accused had committed an offence under
section 167(81) of the Sea Customs Act.
The accused in his statement under section 342 of the Code of
Criminal Procedure stated that the gold bars in question had not
been recovered from him.
According to him, the bag containing· gold
bars was recovered by the police officer from the second floor of the
E
building whereas the accused resided on the graund floor.
The accused denied having anything to do with the gold bars which were
taken into possession by Sub Inspector Sahani. No evidence was
produced in defence.
The Chief Presidency Magistrate before whom the accused was
sent up for trial accepted the prosecution allegations and rejected the
version of the accused. The judgment of the trial court, as mentioned
F
earlier, was confirmed on appeal by the High Court.
In appeal before us, Mr. Gupte on behalf of the accused appellant has argued that the conviction of the accused is based upon the
sole testimouy of Sub Inspector Sahani. It is pointed out that Sahani
made contradictory statements during the course of the trial Jmd as
such, his evidence cannot provide a solid foundation for basiilg the
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conviction of the accused.
In this respect we find that the statemen!s of Sahani. and Advani were recorded by Mr. Nasrullah, Chief
Presidency Magistrate on February 6, 1964. Charge under s~ction
167 ( 81) of the Sea Customs Act was there1fter framed against the
accused.
There was further cross-examination of these two witnesses
on February 12, _1964 after the framing of the charge.
On February
25, 1964 the tnal court stayed further poceedings in the case
to
H
await the decision of a case pending in this Court, wherein it was stated
a question of law having bearing upon the present case was· involved.
The proceedings in the case were revived on November 10
1967
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JETHAMAL PITHAJI I'. ASST. COLL. CUSTOMS (Khanna, !.) 64 7
after this Court gave its decision in the other case.
In the meanwhile,
Mr. Nasrullah, Chief Magistrate had retired and had been succeeded
by Mr. Gehani.
It was then noticed that the charge framed against
the accused by Mr. ,Nasrullah had not been signed by him.
Fres~
charge in identical terms was . thereafter framed by
Mr. Ge ham
against the accused and was signed by him.
Sahani was thereafter
m:alled for further cross-examination by the .accused.
Sahani PW
had in the meantime been compulsorily made to retire from police
department as a punishment. . Sahani in his further cross-examination
made a volte-face and stated that the bag containing the gold bars
was found lying in room No. 2 on that building, while the accused
was not present there.
Sahani further stated that he had made the
accused hold the bag in his hand at the time the panchas
wer~
called by him.
The trial court found that the statement of Saham
made in further cross-examination after the framing of the char&e
by Mr. Gehani was untrue and that the evidence given by him before Mr. Nasrullah was worthy of credence.
The High Court agreed
with the trial court in this respect, and after hearing Mr. Gupte, we
are not inclined to take a different view.
Sahani was confronted with
his earlier statement recorded by himself and the aforesaid statement
showed that the version given by him after the framing of charge
by Mr. Gehani was ·absolutely inconsistent with the earlier statement
recorded by Sahani himself.
It appears that Sahani wanted to spite
the prosecution because of his compulsory retirement as a measure
of punishment.
The statement made by Sahani before Mr. Nasrullah
was in accord with the panchnama prepared by him and we see no
cogent ground to disbelieve the statement of Sahani before Mr. Nasrullah.
The ffigh Court in maintaining the conviction of the accused has
also relied upon his statement Ex. A which was recorded by Customs
Officer Advani (PW 2). According to statement Ex. A, the accused
is a goldsmith and has his own shop.
On the day of occurrence
at about 2.30 p.m., it is stated. one Hafizji came to the shop. oti the
ai;cused and told him to keep the bag in question for about an hour
whereafter Hafizji, undertook to take the bag back.
After the de-
- parterre of Hafizji th.e accused felt that the bag was heavy.
This
fac.t aroused the suspic.ion of the accused and he took the bag upstall's to the room which had been taken by the accused on rent.
The bag was then found to contain 56 gold bars of ten tolas each
with foreign markings.
The accused added that earlier than that
Hafizji had never kept any bag or gold at his shop.
The ~rial court and the High Court did not accept that part of
statement Ex. A wherein the accused had stated about Hafizji having left the bag containing gold bars with the accused.
We see no ·
cogen_t .ground to take a different view. If any one had left a bag
contan~mg gold bars at the shop of the accused, it is, in our opinion,
very difficult to believe that the accused, who is a goldsmith, would
no'. even touch the ?ag at the time it was left with him.
The heavy
weight. of the bag m tha'. event would have aroused his suspicion.
The. tnal court and the High Court, in onr view, rightly rejected the
version of the accused that he had been duped by one Hafizji and
648
SUPREME COURT REPORTS
[ 1974 J I s.c.R.
that he (the accused) did not know of the contents of the bag at
A
the time it was left with him.
The remaining part of the statement
Ex. A that the bag containing gold bars was taken by the accused
to the room which had been taken on rent by him and that the bag
was found in his aforesaid room clearly implicates the accused.
It has been argued by Mr. Gupte that Statement Ex. A .should be
taken as a whole and in case the court comes to the conclusion that
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p&rt of the statement is not worthy of credence, the court should
reject the whole of the statement. It is not permissible according
to the learned counsel, to reject the exculpatory statement and act
upon the part of the statement which implicates the accused. In
this rtepect we find that the question whether it is open to the court
to accept the inculpatory part of the statement even though the court
rejects the exculpatory part was conSiderect by the Constitution Bench
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of this G:mrt in the case of Nishi Kant !ha v~State of Bihar(I) 1bis
Court rn that case quoted with approval the following observations
from page 502 of Taylor's Law of Evidence 11th Edition :
"In the proof of confessions-as in the case of admissions in civil causes-the whole of what the prisoner said
'
on the subject at the time of making the confession should
0
he taken together ...
But if, after the entire statement of the prisoner has
been given .in· evidence, the prosecutor can contradict any
part of it, he is at liberty to do so; and then the whole
testimony is left to the jury for their consideration, precisely
as in other cases where one part of the evidence is contradic·
tory to arrother. Even without such contradictions it is not to
be supposlJd that all the parts of a confession are entitled to
equal credit. The jury may believe that part which charges
the prisoner, and reject that which is in his favour, if they
see sujlicieut grc>unds for so doing. If what he said in his own
favour is not contradicted by evidence offered by the prosecutor, nor is improbable in itself, it will be naturally believed
by the jury; but tl:?ey are not bound to give weight to it on
that account, being at liberty to judge of it, like other
evidew~, by all the circumstances of the case."
It was held in that case by this Court that inculpatory part of the
statement could be accepted even though the exculpatory part of
the statement of the accused was rejected. In the present case, we
find th~t the inculpatory part of statement Ex. A of the accμsed is
distinct and severable from the exculpatory part.
The preseni is
not a case wherein the two parts of the statement are inextricably
linked together and it is not possible to accept one part without accepting the other part.
In case, the court finds the exculpatory part
of the statement of tl:e accused to be inherently improbable, there
is no reascn why the other part of the statement which implicates
the accused and which the court sees no. reason to disbelieve, should
not be accepted.
In the circumstances, we find no infirmity in the
(I) [1969] 2. S. C.R. 1033.
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JETHAMAL PITHAJI v, ASST. COLL. CUSTOMS (Khanna, /.) 649
judgment of the High Court in so far as it has accepted th.e incul·
patory part of statement Ex. A. of the accused.
There is, in our
opinion, no cogent ground to disbelieve the statement of the accused
that the room from which the bag containing gold bars had been
recovered had been taken by him on rent.
This part of the statement clearly goes to show that the accused was in possession of
the gold bars with foreign markings.
A faint hearted submission was also made at the end to the effect
that statement Ex. A of the accused was hit by article 20 of the
Constitution. There is, in our opinion, no force in this submission
because there is nothing to show that the accused made that statement
as a result of any .:ompulsion.
We would, therefore, uphold the conviction of the accused.
We
see no cogent ground to interfere with his
sentence.
The
appeal
fails and is dismissed.
V.P.S.
Appeal dismtssed