2014 (9) TMI 377 - HC - Customs

Smuggling of wrist watch movement - onus to prove - the statement of government officials were rejected - Held that - in the seizure list accused has put his signature. It is also an admitted fact that accused made a statement under Section 108 of Customs Act and in his statement he stated that search was made in presence of the independent witnesses. But in absence of any witnesses or not non-production of the independent witnesses created a doubt in the mind of the court whether the statement made by the accused under Section 108 was taken voluntarily or under pressure. According to the expert the seized wrist watch movements are of Swiss origin but the learned Trial court has failed to find any reason opinion of the expert to that effect. - the expert contended that he received a letter from Mr. Mazumder, Superintendent of Customs with a request to give number embossed in wrist watch movement made in Russia, France and Switzerland. - but said letter was not produced before the Court below - Moreover, none of the witnesses have stated that said letter either destroyed or misplaced or lost during the course of transaction. - So, the entire prosecution case depends upon the ocular version not only of the seizing party but also upon the opinion of the expert. The wrist watch movement bears some marks and it was claimed by the customs officers that those marks are made of foreign country but it was not proved beyond all reasonable doubt seizure witnesses were not produced though the cash were seized but there is no satisfactory explanation whether these seized cash were sale proceed of the smuggled goods. Moreover, no attempt was made on behalf of the customs officers to produce seizure witness to prove this case beyond all reasonable doubt or to prove that the wrist watch movement falls within the purview of prohibitory order. - revenue appeal dismissed - Decided against the revenue.

Issues Involved:
1. Legality of the seizure of wristwatch movements.
2. Validity and voluntariness of the accused's statement under Section 108 of the Customs Act.
3. Reliability of the prosecution's evidence and witnesses.
4. Applicability of expert opinion regarding the origin of the wristwatch movements.
5. Burden of proof under Section 123 of the Customs Act.

Issue-wise Detailed Analysis:

1. Legality of the Seizure of Wristwatch Movements:
The customs officials conducted a raid based on source information and authorization orders, seizing 2292 pieces of wristwatch movements from the accused's shop and additional pieces from his residence. The accused failed to produce documents to validate the possession of these items. However, the court noted discrepancies in the seizure process, such as the non-production of local witnesses who allegedly signed the seizure list. The signatures of the witnesses were inconsistent, raising doubts about the authenticity of the seizure. The court concluded that the customs officers' failure to produce local witnesses and the discrepancies in signatures undermined the legality of the seizure.

2. Validity and Voluntariness of the Accused's Statement under Section 108 of the Customs Act:
The accused made a statement under Section 108 of the Customs Act, admitting to the possession of smuggled wristwatch movements. However, the court questioned the voluntariness of this statement due to the absence of independent witnesses during the seizure. The court emphasized that the non-production of independent witnesses created doubt about whether the statement was made voluntarily or under pressure.

3. Reliability of the Prosecution's Evidence and Witnesses:
The prosecution presented 13 witnesses, primarily customs officials, who testified about the seizure and the foreign origin of the wristwatch movements. However, the court found several issues with the reliability of these witnesses. For instance, P.W. 3 admitted during cross-examination that none of the seized wristwatch movements bore the name of the manufacturing country. Additionally, the court noted that the customs officers failed to produce crucial documents and local witnesses, which cast doubt on the prosecution's case. The court also highlighted that the customs officers did not make any effort to locate and produce the local witnesses, further weakening the prosecution's evidence.

4. Applicability of Expert Opinion Regarding the Origin of the Wristwatch Movements:
The prosecution relied on an expert opinion from M/s. Vijoy Watch Industry, which stated that the seized wristwatch movements were of Swiss origin. However, the court found that the expert's opinion was not adequately supported by documentary evidence. The letter from the customs authority requesting the expert opinion was not produced in court, and the expert's claim of being the sole manufacturer of wristwatches in Eastern India was not substantiated with documents. Consequently, the court deemed the expert's opinion as unreliable.

5. Burden of Proof under Section 123 of the Customs Act:
The prosecution cited precedents where customs officers' reasonable belief that goods were smuggled was upheld. However, the court noted that in the present case, the prosecution failed to prove beyond a reasonable doubt that the seized goods were imported. The court emphasized that the wristwatch movements did not bear any marks indicating their foreign origin, and the seizure witnesses were not produced to corroborate the customs officers' claims. The court concluded that the prosecution did not satisfactorily discharge the burden of proof as required by Section 123 of the Customs Act.

Conclusion:
The court dismissed the appeal, confirming the order of acquittal passed by the lower court. The court criticized the customs officers for their negligence and failure to produce crucial evidence and witnesses, which led to the failure of the prosecution's case. The judgment highlighted the importance of adhering to procedural requirements and the need for reliable and corroborated evidence in criminal cases.

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