2011 (7) TMI 383 - HC - Customs

Served a notice under Section 102 of the Customs Act, 1962 - the prosecution has failed on account of arrest of the accused, testing of the gold, the value of the gold and the visit of PW3 Sh.Ramesh Chand Aggarwal and the sanction issued by the Commissioner of Customs - On these issues, the prosecution could not prove - Thus, all the issues raised have been dealt with by learned Additional Sessions Judge - Find no infirmity in the order passed by the learned Additional Sessions Judge; therefore, not inclined to interfere with the order passed by learned Additional Sessions Judge.

Issues Involved:
1. Condonation of delay in filing the appeal.
2. Legality of the acquittal order dated 04.06.2010.
3. Validity of the statement under Section 108 of the Customs Act.
4. Proper procedure for arrest and search.
5. Proof of recovery of gold biscuits.
6. Validity and procedure of sanction for prosecution.
7. Qualification and testimony of the gold valuer.

Detailed Analysis:

1. Condonation of Delay in Filing the Appeal:
The court allowed the application for condonation of delay in filing the appeal, thereby permitting the Customs Department to proceed with the appeal against the acquittal order.

2. Legality of the Acquittal Order Dated 04.06.2010:
The Customs Department challenged the acquittal of the respondent, who was initially convicted and sentenced for smuggling gold. The respondent was acquitted by the Additional Sessions Judge on the grounds of procedural lapses and lack of substantial evidence.

3. Validity of the Statement Under Section 108 of the Customs Act:
The court observed that while statements under Section 108 of the Customs Act are admissible, they cannot be the sole basis for conviction if retracted immediately. The respondent retracted her statement at the earliest opportunity, claiming it was made under duress. The Additional Sessions Judge concluded that the statement was not recorded voluntarily and could not be used to corroborate the prosecution's case.

4. Proper Procedure for Arrest and Search:
The court found discrepancies in the arrest memo and the timing of the arrest. The arrest memo indicated a time of ".05 hours," which was misinterpreted by the trial court as 5:00 AM. The Additional Sessions Judge noted that the actual time should be 12:05 AM, which conflicted with the panchnama proceedings. This discrepancy raised doubts about the legality of the arrest and the search conducted on the respondent.

5. Proof of Recovery of Gold Biscuits:
The prosecution failed to produce independent panch witnesses to corroborate the recovery of gold biscuits. The only witness, PW1, provided inconsistent testimony regarding the interception and search of the respondent. The Additional Sessions Judge noted that the prosecution did not prove the recovery of gold biscuits beyond a reasonable doubt.

6. Validity and Procedure of Sanction for Prosecution:
The court highlighted that the sanction for prosecution was granted mechanically without due application of mind. PW1 admitted that she did not obtain the sanction herself and merely forwarded the complaint. The Additional Sessions Judge emphasized that the sanction under Section 137 of the Customs Act is mandatory and must be granted after careful consideration of the case facts.

7. Qualification and Testimony of the Gold Valuer:
The court questioned the qualifications and methods used by PW3, the gold valuer, to test the gold biscuits. The valuer's certificate lacked detailed data and did not follow standard testing procedures. Additionally, the valuer's assistant, who prepared the certificate, was not examined as a witness, further weakening the prosecution's case.

Conclusion:
The court found no infirmity in the order passed by the Additional Sessions Judge. The prosecution failed to establish the legality of the arrest, the voluntary nature of the respondent's statement, the proper recovery of gold biscuits, and the validity of the sanction for prosecution. Consequently, the appeal was dismissed, and the acquittal of the respondent was upheld. No order as to costs was made.

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