1990 (8) TMI 156 - HC - Customs

Summary

Issues Involved:
1. Legality of the search conducted on Respondent No. 1.
2. Admissibility and voluntariness of the confessional statements made by Respondent No. 1.
3. Sufficiency of evidence for conviction.
4. Applicability of Section 136(1) of the Customs Act.
5. Justification for the High Court to interfere with the order of acquittal.

Issue-wise Detailed Analysis:

1. Legality of the Search Conducted on Respondent No. 1:
The learned Additional Sessions Judge held that the search was illegal due to non-compliance with Section 102(4) of the Customs Act, which requires the presence of panchas during the search and a list of seized items to be signed by the witnesses. The panchanama was not signed by both panchas, and the prosecution failed to examine the panch witnesses. The High Court, however, found that the procedural defect did not vitiate the search. The evidence of the customs officers was deemed sufficient to establish the seizure of contraband items from Respondent No. 1.

2. Admissibility and Voluntariness of the Confessional Statements:
Respondent No. 1 retracted his confessional statements, claiming they were obtained under threat and coercion. The High Court scrutinized the statements and found them to be voluntarily made. The confessional statement, Exhibit C, was corroborated by the consistent testimony of customs officers. The Court noted that no specific form is required for recording statements under Section 108 of the Customs Act, and the fact that the statement was not in question-and-answer form did not render it involuntary.

3. Sufficiency of Evidence for Conviction:
The High Court found the evidence of the customs officers (P.Ws. 2, 3, and 4) to be credible and sufficient to prove that Respondent No. 1 was in possession of contraband gold and other foreign-origin items. The Court held that the confessional statements, supported by the officers' testimony, were adequate to base a conviction. The learned Magistrate's reliance on this evidence was justified, and the acquittal by the Additional Sessions Judge was not sustainable.

4. Applicability of Section 136(1) of the Customs Act:
The High Court agreed that Respondent No. 1 could not be convicted under Section 136(1) of the Customs Act due to the acquittal of the co-accused, Khalasi. The prosecution failed to prove that Respondent No. 1 entered into an agreement with Khalasi to smuggle the goods, as required under Section 136(1).

5. Justification for the High Court to Interfere with the Order of Acquittal:
The High Court found that the Additional Sessions Judge's judgment of acquittal was not based on a plausible view of the evidence. The Sessions Judge failed to consider the confessional statements and the corroborative evidence provided by the customs officers. The High Court concluded that the evidence was sufficient to prove the prosecution's case, warranting interference with the acquittal.

Conclusion:
The High Court set aside the judgment and order of acquittal dated 22-1-1982 by the Additional Sessions Judge, except for the acquittal under Section 136(1) of the Customs Act. The judgment and order dated 13-8-1979 by the Additional Chief Metropolitan Magistrate convicting and sentencing Respondent No. 1 for offences under Sections 135(l)(a)(ii) and 135(l)(b)(ii) of the Customs Act and Section 5 of the Imports and Exports Control Act were restored.