1986 (12) TMI 45 - HC - Customs

Evidence - Approver s accomplice evidence - Weighing of - Two tests - Reliability and corroboration - Circumstantial - Appreciation

Summary

Issues Involved:
1. Conspiracy to import contraband goods.
2. Loading and transportation of contraband goods.
3. Acquittal of certain accused by the trial court.
4. Reliability and corroboration of an accomplice's evidence.
5. Application of Section 138B of the Customs Act.
6. Examination of circumstantial evidence.

Detailed Analysis:

1. Conspiracy to Import Contraband Goods:
The prosecution alleged that A13 Haji Mohamed Moosa, his sons A14 Abdul Razak and A7 Abdul Hamid, along with others, conspired to import contraband goods of foreign origin into India. The conspiracy involved purchasing an ambassador car as a benami transaction and using it to transport the goods. The first successful attempt involved loading the goods in a truck camouflaged with gunny bags containing Dal, which was then transported to Bombay without detection. Emboldened by this success, a second attempt was made on 24-9-1969, which led to the seizure of the goods by the police near Nasik.

2. Loading and Transportation of Contraband Goods:
The accused loaded the contraband goods on a truck near the sea shore of Dhumas. A convoy, including the recently purchased ambassador car and a station wagon, was used to transport the goods to Bombay. The convoy took a circuitous route to avoid detection but was intercepted by the police near Nasik, leading to the seizure of goods worth Rs. 4,10,923/-.

3. Acquittal of Certain Accused by the Trial Court:
The trial court convicted several accused under Section 120B of the Indian Penal Code and Sections 135(a) and (b) read with Section 135(1) of the Customs Act, as well as under Section 5 of the Imports and Exports (Control) Act, 1947. However, the court acquitted A12 of charges related to the first consignment and acquitted A7, A13, and A14 of all charges related to the second seizure. The State filed an appeal against these acquittals.

4. Reliability and Corroboration of an Accomplice's Evidence:
The court discussed the approach to weighing the evidence of an accomplice, referencing Major E.G. Barsay v. State of Bombay and other cases. The evidence of an accomplice must satisfy a double test: it must be reliable and sufficiently corroborated. The court noted that the evidence of the main witnesses, who turned hostile, could not be considered reliable, and hence the corroboration pieces of evidence need not be examined.

5. Application of Section 138B of the Customs Act:
The appellant argued that the statements made by A1 before the Customs officers should be admitted as substantive evidence under Section 138B of the Customs Act. The respondent countered that this section, introduced in 1973, should not be applied retrospectively to events that occurred in 1969. The court noted that procedural laws can have retrospective operation and considered the statements as substantive evidence.

6. Examination of Circumstantial Evidence:
The court examined various circumstantial evidence presented by the prosecution, including a current account opening form, a letter referring to "Safed Machhi," hundis, passport details, and telephone numbers. The court found that these pieces of evidence did not conclusively connect the accused to the conspiracy. The court also considered the explanation given by P.W. 3 for resiling from his earlier statement, which indicated that he had falsely implicated others to save himself.

Conclusion:
The court concluded that the prosecution's evidence, including the retracted statements and circumstantial evidence, did not meet the standard of proof required in criminal jurisprudence to convict A7 as the mastermind behind the operation. The court upheld the trial court's judgment exonerating the accused concerning the first consignment that went undetected. Consequently, the appeal was dismissed, and the bail bonds of the accused were canceled.