2022 (2) TMI 567 - HC - Customs

Smuggling - foreign mark gold on large scale - failure to produce any documentary evidence as regards legal import of such gold nor could produce any purchase vouchers showing the legal acquisition of the same - scope in Acquittal Appeals - HELD THAT - It is well settled in catena of decisions that an appellate Court has full Power to review re-appreciate and consider the Evidence upon which the Order of Acquittal is founded. However the Appellate Court must bear in mind that in case of Acquittal there is prejudice in favour of the Accused firstly the presumption of innocence is available to him 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 his Acquittal the presumption of his innocence is further reaffirmed and strengthened by the trial Court. On perusal of the evidence on record it appears that the accused Daud Jusab died during the pendency of the trial and hence the case qua him came to be abated. It is pertinent to note Daud Jusab from whom the gold was found has died and the charge against the other respondents accused is of abetment - Even there is no evidence that the accused Daud Jusub from whom the gold was recovered was going to handover the gold to Nazir Noormohmed who stayed at Uttam Guest house. On perusal of overall evidence on record it can be safely said that there is no admissible evidence against the respondents accused and the prosecution has failed to prove the case against the respondents accused beyond reasonable doubt - It may be noted that as per the settled legal position when two views are possible the judgment and order of acquittal passed by the trial Court should not be interfered with by the Appellate Court unless for the special reasons. The Criminal Appeal being devoid of merits is dismissed.

Summary

Issues:
Appeal against acquittal under Section 378 of Criminal Procedure Code - Offences under Section 135 of Customs Act and Section 120B of Indian Penal Code - Evidence of smuggling foreign marked gold - Acquittal based on lack of admissible evidence - Scope of Acquittal Appeals - Review of evidence - Presumption of innocence - Abetment charge - Contradictions in witness statements - Lack of documentary evidence - Interference with judgment of acquittal.

Analysis:
1. The appeal was filed by the State of Gujarat against the judgment and order of acquittal passed by the Additional Chief Metropolitan Magistrate, Ahmedabad, acquitting the accused from offences under Section 135 of the Customs Act and Section 120B of the Indian Penal Code.

2. The prosecution's case revolved around the smuggling of foreign marked gold by the accused individuals. The accused were apprehended with gold worth Re.32,64,000, which was seized by customs officers due to lack of legal documentation for its import. The accused persons were alleged to be part of a larger smuggling operation involving multiple individuals and transactions.

3. The trial court acquitted the accused after considering the evidence and finding them not guilty of the charges. The State of Gujarat, through its advocate, argued that the trial court erred in not crediting witness testimonies and documentary evidence, leading to the acquittal of the accused.

4. The advocate for the accused respondents countered the State's arguments by highlighting the lack of admissible evidence connecting the accused to the alleged offences. He pointed out contradictions in witness statements, the absence of original reports regarding the gold's purity, and the speculative nature of the smuggling allegations.

5. The High Court, after hearing arguments from both sides and reviewing the evidence, reiterated the principles governing Acquittal Appeals. It emphasized the presumption of innocence in favor of the accused and the need for clear evidence to establish guilt beyond reasonable doubt.

6. The court noted that one of the accused had passed away during the trial, affecting the case against him. It also observed that the prosecution had failed to provide admissible evidence linking the accused to the smuggling activities, leading to doubts about their involvement.

7. Considering the legal precedent and the principle of not disturbing a judgment of acquittal unless for special reasons, the High Court upheld the trial court's decision. It emphasized the importance of ensuring justice by avoiding wrongful convictions, especially when two views on the evidence are possible.

8. Ultimately, the appeal was dismissed as lacking merit, reaffirming the trial court's acquittal of the accused individuals based on the insufficiency of admissible evidence and the presumption of innocence in their favor.