2010 (7) TMI 693 - HC - Customs

Search and seizure - Department failed to prove that the accused had not declared the foreign currency before the proper officer namely, the first uniformed customs officer, who had intercepted the accused at the Customs Counter - the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent court of law - . The accused stated that at that juncture, he had shown his purse to the customs officers, who took him downstairs to let him know if the declaration was required to be made and later on when he came back, he told the accused that the currency was liable to be confiscated - The submission of the counsel for the petitioner that the accused retracted his confessional statement belatedly and he did not discharge the burden of proving that the said statement was obtained from him under threat, duress or promise, is to be seen in the backdrop of the facts of the case in hand - The retracted statement of the accused under Section 108 of the Customs Act had to be examined in conjunction with the other corroborative evidence on the record - Decided against the assessee

Issues Involved:
1. Prosecution's failure to prove allegations under Section 135(1)(a) of the Customs Act.
2. Evaluation of evidence and corroboration of the respondent's statement under Section 108 of the Customs Act.
3. Proper officer's role and the declaration of foreign currency under Section 77 of the Customs Act.
4. Scope of appellate court's interference in an appeal against acquittal.

Detailed Analysis:

1. Prosecution's Failure to Prove Allegations under Section 135(1)(a) of the Customs Act:
The prosecution's case was based on the recovery of 11,000 US Dollars and Rs. 6,500/- from the respondent, who failed to produce any legal documentation for the currency. The trial court acquitted the respondent on the grounds that the prosecution could not substantiate the allegations. The court noted the absence of corroborative evidence, particularly the failure to examine independent witnesses to the Panchnama and the non-production of the uniformed customs officer who first intercepted the respondent. The court held that the prosecution did not prove that the respondent had not declared the foreign currency before the "proper officer."

2. Evaluation of Evidence and Corroboration of the Respondent's Statement under Section 108 of the Customs Act:
The trial court scrutinized the testimonies of PW1 (Sh. Y.S. Rawat) and PW2 (Ms. S. Mishra) and found inconsistencies and contradictions. The respondent's statement under Section 108, which was retracted the next day, required corroboration. The court found the prosecution's evidence insufficient to corroborate the retracted statement. The testimony of PW1 was particularly questioned due to his inability to identify the author of the notice under Section 102 and other discrepancies in his deposition.

3. Proper Officer's Role and the Declaration of Foreign Currency under Section 77 of the Customs Act:
The court emphasized the importance of the "proper officer" as defined under Section 2(34) of the Act. The initial interception by the uniformed customs officer at the Customs Counter, who was not produced as a witness, was crucial. The court held that the prosecution failed to establish that the respondent did not declare the foreign currency to this officer. The respondent consistently maintained that he had shown his purse to the customs officers and enquired about the need for a declaration, which was not properly addressed by the prosecution.

4. Scope of Appellate Court's Interference in an Appeal against Acquittal:
The court reiterated the principles governing appellate interference in acquittal cases, emphasizing the double presumption of innocence in favor of the accused. The appellate court should not disturb the trial court's findings unless there is a manifest error or perversity. The court cited several judgments, including Nepal Singh v. State of Haryana and Chandrappa & Ors. v. State of Karnataka, to support this principle. The court found the trial court's evaluation of evidence reasonable and plausible, with no substantial reason to take a different view.

Conclusion:
The High Court upheld the trial court's judgment, finding no manifest legal error or perversity. The prosecution's failure to produce key witnesses and corroborate the retracted statement of the respondent led to the acquittal. The petition for leave to appeal was dismissed, affirming the respondent's acquittal.

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