1988 (3) TMI 77 - HC - Customs

Summary

Issues Involved:
1. Delay in prosecution and appeal.
2. Incident and apprehension of the accused.
3. Evidence and testimony of Customs Officers.
4. Defense of the accused.
5. Trial Magistrate's findings and acquittal.
6. Lack of independent witnesses and corroboration.
7. Conduct of Customs Officers and procedural lapses.
8. Examination of key witnesses and missing reports.
9. Panchanama and its implications.
10. Behavior and statements of the accused.
11. Relationship between Customs and C.B.I. officers.
12. Principles of appellate review in acquittal cases.

Detailed Analysis:

1. Delay in Prosecution and Appeal:
The incident occurred on September 9, 1978, and the initial prosecution concluded on April 7, 1981. The appeal was filed in 1981 and concluded in 1988. The accused, a retired police officer, had retired in 1980 after 40 years of service.

2. Incident and Apprehension of the Accused:
The incident took place at Santacruz Airport, where a Customs Preventive Officer noticed the accused and his companion carrying briefcases. The accused was seen leaning forward, indicating the briefcase was heavy. They were accosted by Customs Officers Samuel Raj and Sherkhan, who verified their identities as C.B.I. officers. The accused denied ownership of the briefcase, which was later found to contain 405 wristwatches of foreign make, valued at Rs. 61,350/-. The accused had no valid documents for the import or acquisition of the watches, leading to their seizure under suspicion of being smuggled.

3. Evidence and Testimony of Customs Officers:
The prosecution's evidence primarily consisted of testimonies from Customs Officers Samuel Raj and Sherkhan. They narrated the events, asserting that the accused was carrying the briefcase and displayed suspicious behavior. However, the trial Magistrate found several infirmities in their testimonies, leading to the acquittal of the accused.

4. Defense of the Accused:
The accused denied all allegations, claiming a strained relationship between the Customs Department and the C.B.I. He stated that he was on official duty for a confidential inquiry and suggested that the briefcase was foisted on him due to this rivalry.

5. Trial Magistrate's Findings and Acquittal:
The trial Magistrate found several infirmities in the prosecution's evidence and accepted the defense's argument of false implication. The Magistrate noted the lack of independent witnesses, procedural lapses, and the improbability of the accused's behavior as alleged by the prosecution. Consequently, the accused was acquitted on all counts.

6. Lack of Independent Witnesses and Corroboration:
The prosecution did not present any independent witnesses despite the presence of passengers and other individuals at the airport. The evidence relied solely on the testimonies of the two Customs Officers. The panchas were brought only after the accused was accosted and questioned, and they did not witness the accused carrying the briefcase.

7. Conduct of Customs Officers and Procedural Lapses:
The Customs Officers did not search the briefcase carried by the accused's companion, Deshpande, nor did they take his personal search. This selective inaction raised doubts about the prosecution's case. Additionally, Sherkhan's detailed observations about the accused's behavior and the briefcase were questioned for their plausibility.

8. Examination of Key Witnesses and Missing Reports:
The prosecution did not record the statements of the Customs Officers or produce their reports, which were crucial for corroboration. The absence of these statements and reports deprived the defense and the court of a means to test the credibility of the witnesses' testimonies.

9. Panchanama and Its Implications:
The panchanama was drawn after the briefcase was opened, revealing the wristwatches. However, the copy of the panchanama was not given to the accused on the spot, and the explanation that the accused declined to accept it was found to be specious. This lapse cast doubt on the prosecution's account of events.

10. Behavior and Statements of the Accused:
The accused's behavior, as alleged by the prosecution, was deemed improbable for an experienced C.B.I. officer. His statements recorded on the spot and thereafter were exculpatory, further supporting his defense.

11. Relationship Between Customs and C.B.I. Officers:
The trial Magistrate noted the possibility of animosity or rivalry between the Customs and C.B.I. officers, which could have influenced the prosecution's case. This potential bias necessitated corroboration of the Customs Officers' testimonies.

12. Principles of Appellate Review in Acquittal Cases:
The appellate court emphasized that it should not overturn an acquittal unless the trial court's view was not possible or probable. The trial Magistrate's view was found to be reasonable and justifiable, leading to the dismissal of the appeal and confirmation of the acquittal.

Conclusion:
The appeal was dismissed, and the order of acquittal recorded by the trial Magistrate was confirmed. The judgment highlighted significant procedural lapses, lack of corroboration, and the improbability of the prosecution's case, leading to the acquittal of the accused.