2019 (12) TMI 73 - HC - Customs

Presumption of innocence - Smuggling - foreign currency - Baggage Rules - offences punishable under Sections 120-B of Indian Penal Code read with Section 135 (1) (a) read with section 135 (1) (ii) and 135 (1) (b) of the Customs Act 1962 - reliability on statements - It is the case of the prosecution that from the statement recorded under Section 108 of the Customs Act all the accused had admitted that they have visited foreign countries and they used to carry foreign currencies - HELD THAT - There is an acquittal and therefore there is double presumption in favour of the accused. Firstly the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law - Secondly the accused having secured acquittal the presumption of their innocence is further reinforced reaffirmed and strengthened by the trial Court. For acquitting the accused the Trial Court observed that the prosecution had failed to prove its case. The evidence has been common. Moreover when the appeal against accused nos.2 3 is being dismissed I see no reason why the appeal acquitting of accused no.1 which was separated should also not be disposed. The appeal including appeal which was separated for accused no.1 stands dismissed.

Summary

Issues Involved:
1. Legitimacy of the surveillance and apprehension of the accused.
2. Validity and voluntariness of the statements recorded under Section 108 of the Customs Act.
3. Credibility of the evidence and witnesses presented by the prosecution.
4. Procedural lapses and discrepancies in the prosecution’s case.
5. Presumption of innocence and the principle of double presumption in favor of the accused.

Detailed Analysis:

1. Legitimacy of the Surveillance and Apprehension of the Accused:
The prosecution claimed that the Customs Officers maintained surveillance at Terminal 2-A, Sahar International Airport, and intercepted the accused with concealed foreign currency. However, the court found inconsistencies in the prosecution's narrative regarding the exact location and manner of apprehension. The boarding passes and passports of the accused did not bear any immigration stamps, casting doubt on the claim that the accused were intercepted while boarding the aircraft. The lack of panch witnesses during the initial apprehension and the failure to involve the Assistant Collector of Customs or the Air Intelligence Unit further weakened the prosecution's case.

2. Validity and Voluntariness of the Statements Recorded Under Section 108 of the Customs Act:
The accused retracted their statements recorded under Section 108, alleging they were not voluntary and were obtained under duress. The court noted that while statements under Section 108 are admissible, the prosecution must still prove its case beyond reasonable doubt. The court found discrepancies in the statements and the manner in which they were recorded, including the failure to properly explain and read the statements to the accused, which raised doubts about their voluntariness.

3. Credibility of the Evidence and Witnesses Presented by the Prosecution:
The court found several contradictions and inconsistencies in the testimonies of the prosecution witnesses. For instance, the panch witness (PW-5) contradicted the customs officer (PW-1) regarding the circumstances under which he was called to be a panch witness. PW-5's testimony about the presence of currency notes openly visible in the bags contradicted the prosecution's claim that the currency was concealed. The failure to produce other key witnesses and the lack of corroborative evidence further undermined the prosecution's case.

4. Procedural Lapses and Discrepancies in the Prosecution’s Case:
The court identified multiple procedural lapses, including the failure to search the toilet before allowing accused no.2 to eject the balloon containing currency, the absence of vehicle details used to transport the accused, and the lack of hand baggage tags. The prosecution also failed to produce the seized currency notes in court, and the documents (Exh.P-22 and Exh.P-23) did not specify which currency was seized from which accused. These procedural lapses created significant doubts about the integrity of the prosecution's case.

5. Presumption of Innocence and the Principle of Double Presumption in Favor of the Accused:
The court emphasized the principle of double presumption in favor of the accused, particularly in cases of acquittal. The presumption of innocence is reinforced by the trial court's decision to acquit the accused. Given the numerous discrepancies and the failure of the prosecution to prove its case beyond reasonable doubt, the court upheld the acquittal of the accused. The court cited the Apex Court's decision in Chandrappa & Ors. v. State of Karnataka, which outlines the principles governing appellate review of acquittals, including the need for substantial evidence to overturn an acquittal.

Conclusion:
The court dismissed the appeal, affirming the trial court's decision to acquit the accused. The prosecution's case was marred by inconsistencies, procedural lapses, and a failure to prove guilt beyond reasonable doubt. The principle of double presumption of innocence further reinforced the acquittal. Consequently, the appeal against all accused, including the separated appeal for accused no.1, was dismissed with no order as to costs.