1971 (7) TMI 59 - HC - Customs

Summary

Issues:
- Appeal against order of acquittal by Presidency Magistrate
- Prosecution case of smuggling goods on Arab Dhow
- Defence of accused regarding location and possession of goods
- Criticism of investigation and case handling by learned Magistrate
- Admissibility of statements under Section 108 of Customs Act
- Lack of evidence to prove knowledge of accused regarding smuggled goods

Analysis:
The High Court of Bombay heard an appeal against the order of acquittal by the Presidency Magistrate concerning the prosecution of nine accused individuals for smuggling goods on an Arab Dhow. The prosecution alleged that the Deputy Superintendent of Police instructed the Anti-Corruption Bureau to monitor the Dhow, leading to its interception near Manori Island. The vessel was found to contain various goods, including watches, gold slabs, and textiles. The accused claimed they were forcibly brought to Indian waters and denied knowledge or possession of the smuggled items.

The learned Magistrate acquitted all accused, citing lack of proof that the Dhow was within Indian customs waters during interception. The Magistrate criticized the investigation and rejected claims of improper prosecution sanction and forced arrival at the Indian shore. The State appealed this decision, focusing on accused Nos. 4, 5, 8, and 9. The defense highlighted omissions in the complaint and witness list, questioning the role of Sub-Inspector Lagali in the case. The court noted discrepancies but affirmed Lagali's involvement in the vessel's interception.

Regarding the admissibility of statements under Section 108 of the Customs Act, the Magistrate deemed them inadmissible due to recording by non-Gazetted Officers. Inspector Divekar acknowledged not recording the statements, raising doubts about their validity. As these statements were crucial to proving the accused's knowledge of the smuggled goods, their inadmissibility weakened the prosecution's case.

Ultimately, the High Court dismissed the appeal against accused Nos. 4, 5, 8, and 9, as the lack of evidence establishing their awareness of the smuggled items rendered the charges unproven. The court ordered the release of these respondents while keeping the rest of the appeal pending for further consideration.