2011 (3) TMI 1409 - HC - Indian Laws

Order of acquittal - offences punishable under Section 120-B of IPC read with Sections 20, 23 and 29 of the N. D. P. S. Act, 1985 and Sections 135 (i)(a) and 135 (i)(b) read with Section 135(1)(ii) of the Customs Act, 1962 - search and seizure of the contraband weighing about 824.780 kgs. This was allegedly recovered from the tempo bearing Registration No. MMS-432 and by the team of the Central Excise officers and in the presence of two independent witnesses, namely, PW 2 - Shrikant Patil and Shri Satam - he had seen accused no.1 and accused no.3 going together in the Ambassador car and thereafter at some stage the accused no.1 handing over the key to accused no.3. However, there was no corroboration to this evidence of PW 1. The credibility of the evidence of PW 1 - Held that - reasoning set out by the trial court in support of the impugned acquittal order is based on the proper appreciation of the evidence adduced by the prosecution in support of its case and it does not call for any reconsideration. The trial court has not committed any error in acquitting the accused, Bail bonds of all the accused stand cancelled

Summary

Issues Involved:
1. Legality of the detention of the accused.
2. Voluntariness and reliability of the statements recorded under Section 108 of the Customs Act.
3. Credibility of the independent witness (PW 2) and the evidence regarding the search and seizure operation.
4. Connection of the accused with the contraband and the vehicles involved.

Issue-wise Detailed Analysis:

1. Legality of the detention of the accused:
The trial court determined that the accused were in illegal detention from the evening of 31/7/1987 until the morning of 4/8/1987, as they were not produced before the competent court within 24 hours. This conclusion was based on the cross-examination of witnesses PW 1, PW 3, and PW 6, who admitted receiving telegrams from the family members of the accused alleging illegal detention. The telegrams from Mrs. Suresha Patel and Mrs. Kothari, received on 2/8/1987, corroborated this claim. Thus, the trial court held that the accused were illegally detained.

2. Voluntariness and reliability of the statements recorded under Section 108 of the Customs Act:
The trial court found that the statements recorded under Section 108 of the Customs Act were not voluntary. The accused retracted these statements at the earliest opportunity when presented before the competent court on 4/8/1987. The court also noted that some of the accused had injuries when produced for remand, supporting the defense's claim of duress. The Chief Medical Officer's report (Exh. 72-B) further substantiated this. Consequently, the trial court concluded that the retracted confessions, without corroboration by an independent and reliable witness, could not be relied upon.

3. Credibility of the independent witness (PW 2) and the evidence regarding the search and seizure operation:
The trial court found PW 2, Shrikant Patil, to be an unreliable witness. His testimony was inconsistent, and he failed to identify the accused correctly in court. Additionally, the defense highlighted that PW 2 had a criminal background. The trial court also noted discrepancies in the evidence of the Central Excise officers (PW 1, PW 3, and PW 6) and the lack of corroboration from any witness from the Petrol Pump where the search allegedly took place. The court questioned the presence of PW 2 and his companion Satam at the Petrol Pump, suspecting they were brought by the Central Excise officers from Lalbaug.

4. Connection of the accused with the contraband and the vehicles involved:
The prosecution failed to establish a clear connection between the accused and the contraband or the vehicles involved. The registration papers of the tempo were found in the Ambassador Car, but the prosecution did not investigate the ownership of the tempo or how it came into the possession of the accused. The evidence provided by PW 1 regarding the movements and actions of the accused lacked corroboration. The trial court found the credibility of the evidence of PW 1 and PW 6 to be doubtful.

Conclusion:
The trial court's acquittal of the accused was based on a proper appreciation of the evidence. The court found that the accused were illegally detained, the statements recorded under duress were unreliable, the independent witness was not credible, and there was insufficient evidence connecting the accused to the contraband and the vehicles. Consequently, the appeal was dismissed, and the bail bonds of the accused were canceled.