2012 (2) TMI 198 - HC - Customs

Acquittal of charge u/s 135(1) (a) of the Customs Act, 1962 CLP filed u/s 378(3) of the Code of Criminal Procedure, 1973 seeking special leave to appeal against the said judgment seizure of gold biscuits Held that - In present case, adjudicating authority as also the appellate authority both found the respondent guilty on merits but the revisional authority exenorated him on account of benefit of doubt. Further, there is no retraction of statement u/s 108 of the Customs Act by the aforesaid 3 witnesses and retraction of statement of accused/respondent is highly belated. Therefore, the case requires full consideration and re-appreciation of entire prosecution case. Consequently, leave is granted to the petitioner/department for filing an appeal against the impugned order of acquittal.

Issues Involved:
1. Recovery and possession of contraband gold.
2. Voluntary statement under Section 108 of the Customs Act.
3. Conduct and behavior of the accused.
4. Testimonies of prosecution witnesses.
5. Exoneration in departmental proceedings and its impact on criminal proceedings.
6. Errors in the judgment of acquittal by the learned ACMM.

Detailed Analysis:

1. Recovery and Possession of Contraband Gold:
The case involves the recovery of 24 gold biscuits from the Arrival Immigration Hall of IGI Airport on 20/01/1994. The gold biscuits were found below the wash-basin in the toilet for handicaps, wrapped in brown plastic adhesive tape. The respondent, a constable of Delhi Police, was present at the scene and attempted to flee, striking a customs officer. Although no gold was recovered directly from the respondent's possession, a cloth belt with a stitched pocket intended for concealing gold biscuits was found on him. The gold biscuits bore Swiss markings, weighed 2.819 kgs, and were valued at Rs. 13,02,000/-.

2. Voluntary Statement under Section 108 of the Customs Act:
The respondent admitted the recovery and seizure of the gold biscuits in a voluntary statement under Section 108 of the Customs Act. He detailed his involvement, including instructions from one Bhagirath to pick up the gold from the toilet and deliver it, for which he was to be paid Rs. 30,000/-. He described his actions on the day of the incident, including interactions with Bhagirath and a person named Surjit.

3. Conduct and Behavior of the Accused:
The respondent's conduct, including his attempt to escape and scuffle with customs officials, was highlighted as indicative of guilt. The learned ACMM overlooked the relevance of this conduct, which was supportive of the prosecution's version. The respondent's unexplained presence in the handicapped toilet and his actions upon being confronted by customs officials were significant factors.

4. Testimonies of Prosecution Witnesses:
The prosecution examined nine witnesses. Key testimonies included:
- PW2, the main complainant, witnessed the search, recovery, and seizure, and corroborated the respondent's presence and conduct.
- PW7 corroborated PW2's testimony, describing the respondent's attempt to escape and the resulting scuffle.
- PW3 recorded the respondent's statement and denied allegations of coercion.
- PW4, PW8, and PW9, despite turning hostile, provided statements under Section 108 of the Customs Act that were not retracted and contained incriminating details.
- PW5 confirmed the voluntary nature of PW4's statement.
- PW6, a jeweler, tested the gold biscuits and issued a purity certificate, which was not properly appreciated by the learned ACMM.

5. Exoneration in Departmental Proceedings and Its Impact on Criminal Proceedings:
The respondent was exonerated in departmental proceedings, but this did not bar criminal proceedings. The adjudicating authority and appellate authority found the respondent guilty on merits, while the revisional authority exonerated him on the benefit of doubt. The learned ACMM's reliance on the revisional authority's findings was misplaced, as criminal proceedings are to be determined independently of departmental findings.

6. Errors in the Judgment of Acquittal by the Learned ACMM:
The learned ACMM's judgment contained errors in appreciating evidence and considering the conduct and testimonies of witnesses. The ACMM overlooked relevant aspects, such as the voluntary statements under Section 108 of the Customs Act and the respondent's conduct. The ACMM's reliance on the revisional authority's findings was also erroneous.

Conclusion:
The case requires full consideration and re-appreciation of the entire prosecution case. Consequently, special leave to appeal against the acquittal order is granted. The appeal is to be listed for hearing on 16.03.2012.

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