1990 (4) TMI 64 - HC - Customs

Summary

Issues Involved:
1. Legitimacy of the acquittal of the original accused No. 2.
2. Evaluation of evidence and statements under Section 108 of the Customs Act.
3. Competency and reliability of accused No. 1 as a prosecution witness.
4. Discrepancies and reliability of the prosecution's evidence.

Issue-wise Detailed Analysis:

1. Legitimacy of the Acquittal of Original Accused No. 2:
The appeal was filed by the Assistant Collector of Customs against the acquittal of original accused No. 2 by the Additional Sessions Judge. The main question was whether accused No. 2 had knowledge of the 32 electronic calculators found in the car.

2. Evaluation of Evidence and Statements under Section 108 of the Customs Act:
The prosecution relied heavily on the statements of accused No. 2 recorded under Section 108 of the Customs Act. However, the defense argued that the statement was not voluntary, citing an incident where a customs officer allegedly slapped a shipping officer, causing fear and nervousness in accused No. 2. The court noted that the statement must be voluntary to be admissible and found substance in the contention that the statement was made under duress. This was supported by the evidence of accused No. 1 and the retraction letter of accused No. 2 dated 16-2-1976.

3. Competency and Reliability of Accused No. 1 as a Prosecution Witness:
Accused No. 1, who initially pleaded not guilty but later pleaded guilty, was examined as a prosecution witness. The court questioned the competency of accused No. 1 as a witness, given that he was jointly tried with accused No. 2. The court cited the Supreme Court ruling in Laxmipat Choraria and Others v. State of Maharashtra, which emphasized that an accomplice's evidence must be corroborated in material points. The court found that accused No. 1's evidence was unreliable and inconsistent, and hence, it could not be used to corroborate the statement of accused No. 2.

4. Discrepancies and Reliability of the Prosecution's Evidence:
The court identified several discrepancies in the prosecution's evidence, particularly in the statements and testimonies of the customs officers. For instance, Mr. Hudah, P.W. 2, mentioned a taxi instead of a car, which was a significant deviation from the prosecution's case. The court also noted that the panchnama, which recorded the seizure of calculators, was not reliable as the items were taken out of the car before the arrival of the panchas. These discrepancies diminished the credibility of the prosecution's case.

The court concluded that the evidence did not conclusively prove that accused No. 2 had knowledge of the calculators. The presence of currency notes and hundies belonging to accused No. 1 near the calculators suggested that the calculators could belong to accused No. 1. The court held that accused No. 2 was entitled to the benefit of doubt, and the acquittal by the Additional Sessions Judge was justified.

Conclusion:
The appeal was dismissed, and the bail bond of the accused was canceled. The court upheld the acquittal of accused No. 2, emphasizing the lack of reliable evidence and the benefit of doubt principle.