2014 (9) TMI 1049 - HC - Customs

Import of baggages Non declaration of certain articles opting green channel - unable to prove sanction order issued to him and the independent witnesses named in the panchnama, and in whose presence the arrest and seizure took place, were not examined - Held that - having named the panch witnesses, it was incumbent on the petitioner to produce them as witnesses. It would have been a different matter if there were no witnesses at all. In that case, the question whether in the absence of panch witnesses, the offence could be proved on the basis of the evidence of the official witnesses, could have arisen. However, where a panch witness is named and later it transpires that the address given by the panch witness is fictitious, then a different set of consequences will follow. It would throw grave doubts on the truthfulness of the panchnama which is shown to have been signed by the said panch witnesses. In the present case, the failure to produce the panch witnesses would lead to an adverse inference being drawn against the petitioner and in favour of the respondent. - Decided against the revenue

Summary

Issues:
1. Appeal sought by the Department of Customs against the order acquitting the Respondent under Sections 132 and 135(1)(a) of the Customs Act, 1962.
2. Failure to produce the sanction order and examine independent witnesses named in the panchnama.

Analysis:
1. The Department of Customs filed an appeal seeking to challenge the order of acquittal passed by the trial court in a case involving the Respondent's arrival at the airport from London with undeclared gold items and other goods. The Respondent was intercepted by Customs officers after walking through the Green Channel and was found with undisclosed gold items and other valuables. The complaint was filed under Sections 132 and 135(1)(a) of the Customs Act, alleging fraudulent evasion of customs duty. However, the trial court acquitted the Respondent based on two primary grounds.

2. The first ground for acquittal was the failure of the petitioner to produce the sanction order issued in accordance with the law. Although a witness recognized the signature of the sanctioning authority, the file containing the order was not presented, and the sanctioning authority was not examined. The second ground was the non-examination of independent witnesses named in the panchnama. The petitioner's counsel admitted that the attempts to summon these witnesses were unsuccessful, as their addresses were found to be fictitious. The court emphasized the importance of producing named witnesses, especially panch witnesses, and highlighted the adverse inference that can be drawn if witnesses are not produced.

3. The court noted that the absence of panch witnesses, despite being named, raised doubts about the authenticity of the panchnama. In this case, the failure to produce these witnesses led to the court giving the benefit of doubt to the Respondent. The court agreed with the trial court's decision to acquit the Respondent based on the failure to produce crucial witnesses. Ultimately, the court dismissed the appeal, stating that no grounds were established for challenging the trial court's order of acquittal.