1992 (5) TMI 32 - HC - Customs

Summary

Issues Involved:
1. Legality of search and seizure.
2. Admissibility and voluntariness of statements made by the accused.
3. Exclusive control and conscious possession of seized articles by the accused.
4. Legality of detention and arrest of the accused.
5. Quashing of criminal proceedings against co-accused A.H. Khan.

Issue-wise Detailed Analysis:

1. Legality of Search and Seizure:
The search was conducted on 29th September 1980 by a team of Customs Officers on the vessel Murray Everett. During the search, cigarette cartons, wrist watches, and other foreign-origin items valued at over Rs. 25 lakhs were found concealed in the vegetable room. The articles were seized under a seizure list, Exhibit-I, in the presence of the accused Rudy and witnesses. The trial court's criticism of the search and seizure was deemed unfounded, as any irregularity or illegality in the search does not affect the validity of the subsequent investigation (citing AIR 1980 S.C. 593).

2. Admissibility and Voluntariness of Statements:
The prosecution presented statements made by the accused Rudy, marked as exhibits 2 and 3. Exhibit 2 was written and signed by Rudy himself, while Exhibit 3 was recorded under Section 107 of the Customs Act. The court held these statements to be admissible, referencing case law such as Balakrishna v. State of West Bengal (A.I.R. 1974 S.C. 120) and Vira Ibrahim v. State of Maharashtra (A.I.R. 1976 S.C. 1167). The court found no evidence of inducement, threat, or promise by Customs Officers, and thus, the statements were considered voluntary and credible.

3. Exclusive Control and Conscious Possession:
The accused Rudy, as Chief Steward, was in sole charge of the store room where the contraband was found. Witnesses testified that Rudy unlocked the store room with his key. The court emphasized that under Section 123 of the Customs Act, once possession of smuggled goods is established, the burden shifts to the accused to prove otherwise. Rudy failed to discharge this onus, and the court presumed a culpable mental state under Section 138A of the Act. The defense's argument that other crew members had access to the store room was not sufficient to negate Rudy's exclusive control.

4. Legality of Detention and Arrest:
The trial court's acquittal was partly based on the belief that Rudy's detention was illegal. However, the appellate court found this to be incorrect, noting that Rudy was legally arrested on 4-10-1980. The trial court's bias regarding alleged illegal detention led to an erroneous judgment. The appellate court emphasized that the Customs Officers' testimonies were credible and not motivated by falsehoods.

5. Quashing of Criminal Proceedings Against A.H. Khan:
A.H. Khan, a Senior Preventive Officer, sought to quash the criminal proceedings against him, alleging no incriminating evidence and claiming the complaint was filed to remove him from service. The court, upon reviewing the complaint, found prima facie evidence of criminal conspiracy involving Khan. The court referenced Supreme Court rulings (e.g., Mrs. Dhanalakshi v. R. Prasanna Kumar, AIR 1990 S.C. 490) to assert that the complaint should be read as a whole and that the High Court should not interfere unless the complaint is frivolous or vexatious. The court dismissed Khan's revision application, directing the trial to proceed.

Conclusion:
The appellate court allowed the appeal, setting aside the trial court's acquittal of Rudy. Rudy was found guilty under Section 135(1)(i) of the Customs Act and sentenced to two years of rigorous imprisonment and a fine of Rs. 5,000. The criminal revision application by A.H. Khan was dismissed, and the trial against all accused, excluding Rudy, was ordered to continue.