2012 (11) TMI 304 - HC - Customs

Conviction - Criminal Appeal - accused was found in possession of foreign currencies Held that - accused being found in possession of the foreign currency is to the knowledge of the accused - sanctioning officer has stated that he has verified and has accepted the case of the DRI of P.W.3 finding in his investigation the accused in possession of foreign currency along with Indian currencies and Travellers cheques - revision petition dismissed

Issues Involved:
1. Reliance on Seizure Mahazar and non-examination of panch witnesses.
2. Proof of possession of foreign currency.
3. Validity of sanction order.
4. Application of Section 106 of the Evidence Act.
5. Reliability of evidence and witness testimony.
6. Framing of charge and its adequacy.
7. Requirement to prove the case independently under Section 200 Cr.P.C.

Issue-wise Detailed Analysis:

1. Reliance on Seizure Mahazar and Non-examination of Panch Witnesses:
The defense argued that the prosecution's reliance on the Seizure Mahazar (Ex.P.2) was insufficient without examining the panch witnesses. The court referenced the Apex Court's decision in Mon Bora @ Bijay Bora v. State of Assam, which established that a conviction can be based on the testimony of a single reliable witness. The court found that the evidence provided by P.W.3, who identified the accused and the seized foreign currency, was credible and consistent, thus the non-examination of panch witnesses did not invalidate the prosecution's case.

2. Proof of Possession of Foreign Currency:
The defense contended that the prosecution failed to produce the seized foreign currency in court, questioning the proof of possession. However, the court noted that the defense's own cross-examination suggested knowledge of the accused's possession of the foreign currency, thereby affirming the prosecution's case. The court concluded that the simultaneous actions of the Customs office and the accused's knowledge of the foreign currency were sufficiently established.

3. Validity of Sanction Order:
The defense challenged the validity of the sanction order (Ex.P.1), claiming it was a cyclostat copy and lacked application of mind. The court observed that Ex.P.1 was marked without any objection from the defense, and the sanctioning officer had verified and accepted the findings of P.W.3. The court rejected the defense's argument, stating that the sanction order was valid and properly executed.

4. Application of Section 106 of the Evidence Act:
The defense argued that the prosecution had not discharged its burden of proof, and therefore, the accused was not required to explain under Section 106 of the Evidence Act. The court found that P.W.3's testimony about the accused's actions, including the retrieval of a plastic cover containing foreign currency from a toilet, was not contested. This established a clear link between the accused and the possession of the foreign currency, thereby satisfying the requirements of Section 106.

5. Reliability of Evidence and Witness Testimony:
The defense questioned the reliability of P.W.2's testimony, citing inconsistencies. The court found that P.W.2's testimony, along with P.W.3's, provided a coherent narrative that corroborated the prosecution's case. The court emphasized that the evidence collected, including the accused's voluntary statement and the seizure of foreign currency, was consistent and reliable.

6. Framing of Charge and Its Adequacy:
The defense argued that the charge was vague and not in accordance with the law, as it did not mention sub-clause (b) of Section 135(1)(ii) of the Customs Act. The court held that the accused understood the nature of the charges against him, as evidenced by his responses during the trial. The court found that the omission of sub-clause (b) did not prejudice the defense, and the charge was adequately framed.

7. Requirement to Prove the Case Independently under Section 200 Cr.P.C.:
The defense asserted that the prosecution failed to independently prove its case under Section 200 Cr.P.C. The court acknowledged this principle but found that the prosecution had substantiated its case through credible evidence and witness testimony. The court dismissed the defense's argument, noting that the prosecution's evidence was sufficient to establish the accused's guilt.

Conclusion:
The court dismissed the revision petition, finding no merit in the defense's arguments. The conviction recorded by the learned Presiding Officer, Special Court in C.C. No. 414/1999, and confirmed by the Presiding Officer, Fast Track Court-IV in Criminal Appeal No. 103/2003, was upheld. The court emphasized the reliability of the prosecution's evidence and the proper execution of legal procedures throughout the case.

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