1985 (6) TMI 36 - HC - Customs

Summary

Issues Involved:
1. Involvement of the 2nd accused in arranging transport of silver.
2. Involvement of the 8th accused in arranging the crew.
3. Involvement of accused 3, 6, and 7 in transporting illicit silver.
4. Legality of the Magistrate's order for the release of the jeep under Section 452 of the Code of Criminal Procedure.

Detailed Analysis:

Issue 1: Involvement of the 2nd Accused
The prosecution alleged that the 2nd accused, brother-in-law of the 1st accused, arranged the transport of silver in his jeep for illegal export. However, the court found no direct evidence implicating the 2nd accused. The statements under Section 108 of the Customs Act from PWs 4 and 6 were not substantiated in court, and the 2nd accused's statement was not produced. Consequently, the court agreed with the appellant's counsel that there was insufficient evidence to convict the 2nd accused.

Issue 2: Involvement of the 8th Accused
The 8th accused was alleged to have arranged the crew for the boat "Ayisha." The court found no direct evidence from PWs 1 and 3 implicating the 8th accused. The only evidence against him were the statements of co-accused under Section 108 of the Customs Act, which are not substantive evidence. Without additional corroborative evidence, the court found it unsafe to convict the 8th accused based solely on these statements.

Issue 3: Involvement of Accused 3, 6, and 7
Accused 3, 6, and 7 were crew members of the boat "Ayisha," which was found carrying 86 silver ingots for illegal export. The court found ample evidence, including the direct testimony of PW3 and the statements under Section 108 of the Customs Act given by the accused themselves, which were not retracted. The court noted the presumption under Section 138A of the Customs Act regarding culpable mental state and found that the accused failed to rebut this presumption. The court concluded that accused 3, 6, and 7 were guilty under Section 135 of the Customs Act.

Issue 4: Legality of the Magistrate's Order for Release of the Jeep
The Magistrate ordered the release of jeep MHY 3288 under Section 452 of the Code of Criminal Procedure, deeming its confiscation by Customs Authorities illegal. The High Court found this order unsustainable, noting that the jeep had vested in the Central Government following a valid confiscation order under Section 126 of the Customs Act. The court emphasized that special provisions in the Customs Act override the general provisions of the Code. The court set aside the Magistrate's order, allowing the Customs Authorities to proceed with the jeep's confiscation.

Conclusion:
The High Court upheld the acquittal of the 2nd and 8th accused due to insufficient evidence but set aside the acquittal of accused 3, 6, and 7, convicting them under Section 135 of the Customs Act. The court also set aside the Magistrate's order for the release of the jeep, affirming its confiscation by the Customs Authorities. Accused 3, 6, and 7 were sentenced to three months of simple imprisonment each.