2019 (10) TMI 1394 - HC - Customs

Smuggling - Sandal woods - prohibited goods or not - acquittal of accused/respondents in both the appeals on the ground that the appellant/prosecution has not proved its case beyond reasonable doubt against the accused/respondents - shipping bill was filed by the respondents in bogus name to escape from the clutches of law - offence under Section 135(A) of the Customs Act. HELD THAT - On reading of the entire evidences of the prosecution and the statements given by the respondents before the Customs officials and also the photographs which were produced before the Court as Material Objects it is seen that the penal proceedings were taken by the Department, which was confirmed by this Court and admittedly the respondents have not challenged the order of this Court regarding penalty proceedings. Therefore, in these circumstances, this Court comes to the conclusion that the prosecution has proved its case beyond reasonable doubt that the respondents made a preparation and attempt to smuggle the sandal woods in the name of roofing tiles and as per Foreign Trade (Development and Regulation) Act, 1992, EXIM Policy and Foreign Trade Policy 1997-98, the sandal woods are prohibited items for exporting. The learned trial Judge failed to consider the legal as well as factual position in this case and even though there is sufficient materials available to convict the respondents for the charged offences, he has not appreciated the evidence properly in right perspective to give effect to the Specific provisions of the Customs Act and this Court finds that the appellant has not proved its case and the respondents are not found guilty for the offence under Section 132 of Customs Act and all the respondents are acquitted for the said offence. The appellant/Customs Department has proved its case beyond reasonable doubt for the offence punishable under Sections, 135(1)(a)(ii) r/w.135(A) of the Customs Act and therefore, they are convicted under Sections 135(1)(a)(ii) r/w.135(a) of the Customs Act. Therefore, the judgment of the learned trial Judge is liable to be set aside and accordingly, set aside, in this regard. Since it is a reversal judgment, before awarding sentence, the accused have to be given opportunity for being asking the question of sentence. The acquittal of respondents in both the appeals for the charges under Section 132 are confirmed and for the charges under Sections, 135(1)(a)(ii) r/w.135(a) of the Customs Act, by the learned Additional Chief Judicial Magistrate, Madurai, in C.C.Nos.2 of 2003 and 4 of 2004 vide separate judgments dated 23.05.2008 are hereby set aside - Criminal Appeal stands allowed in part.

Issues Involved:
1. Sanction of prosecution.
2. Non-production of seized goods.
3. Retracted statements of the accused.
4. Proof of misdeclaration and attempt to export prohibited goods.
5. Confiscation proceedings and penalties.
6. Applicability of judgments and legal precedents.

Issue-wise Detailed Analysis:

1. Sanction of Prosecution:
The appellant argued that the sanction of prosecution against the respondents was duly obtained, and the non-examination of the sanctioning authority did not vitiate the case. The trial court found that the sanctioning authority was not examined, thus the sanction of prosecution was not established. However, PW.2, who was acquainted with the sanction proceedings, testified that the sanctioning authority had applied his mind and accorded the sanction. The court held that mere non-examination of the officer who sanctioned the prosecution was not fatal to the case when corroborated by other witnesses.

2. Non-production of Seized Goods:
The appellant contended that the non-production of the seized sandalwood before the court was not a ground for acquittal, given the large quantity involved. The trial court acquitted the respondents partly on this ground. The High Court noted that the trial judge had inspected the godown and seen the materials, and photographs of the sandalwood were produced. Hence, non-production of the actual goods was not deemed fatal to the prosecution's case.

3. Retracted Statements of the Accused:
The trial court found that the prosecution failed to prove its case beyond reasonable doubt, partly because the accused had retracted their statements. The appellant argued that the voluntary statements given by the respondents before the Customs Officers were admissible in evidence. The High Court held that the statements were voluntary and admissible, as the customs officials are not police officers, and thus, the retraction did not undermine the prosecution's case.

4. Proof of Misdeclaration and Attempt to Export Prohibited Goods:
The appellant argued that the respondents attempted to export sandalwood by falsely declaring it as roofing tiles, which is an offense under the Customs Act. The trial court found no proof of misdeclaration as the bills were not produced. The High Court concluded that the prosecution established the charges of preparation and attempt to smuggle sandalwood under the guise of roofing tiles. The court noted that the statements of the respondents and other evidence clearly demonstrated their involvement.

5. Confiscation Proceedings and Penalties:
The appellant highlighted that the confiscation proceedings had been upheld by the High Court in a separate case (CMA No.93 of 2009), where the penalty imposed by the Commissioner of Customs was restored. The respondents had not challenged this order, which was final. The High Court agreed that the findings in the confiscation proceedings supported the prosecution's case in the criminal trial.

6. Applicability of Judgments and Legal Precedents:
The respondents' counsel cited various judgments arguing that the prosecution failed to prove its case beyond reasonable doubt and that retracted statements could not be relied upon. The High Court found that the cited cases were not applicable to the present case, as the prosecution had proved the charges of preparation and attempt to smuggle prohibited goods beyond reasonable doubt.

Conclusion:
The High Court set aside the acquittal of the respondents for the charges under Sections 135(1)(a)(ii) r/w 135(A) of the Customs Act, convicting them for these offenses. The respondents were directed to appear for sentencing, and in their absence, the court imposed a sentence of one year imprisonment and a fine of ?50,000 each, with a default sentence of six months rigorous imprisonment. The court confirmed the acquittal for the charge under Section 132 of the Customs Act.

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