2020 (1) TMI 510 - HC - Customs

Smuggling - Gold - Foriegn Currency - retraction of statements - acquittal of accused - respondents failed to give satisfactory explanation for the possession of those 24 marked gold biscuits and Indian and Foreign currency and also failed to produce any documents regarding lawful possession of the same - HELD THAT - In the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. One more point which comes to my mind is if the panch witnesses have not been produced, what is the evidence to satisfy that the said premises is where the respondents were found. I have to also note that an electricity bill in the name of Jayantilal Pandya has been seized from the said premises by prosecution. The said Jayantilal Pandya has not been summoned and no effort has also been made to trace this Jayantilal Pandya - no effort has been made to establish occupancy of the said premises by the two respondents. There is no evidence to even show how respondents were in occupation of the said premises, whether they were on leave and license basis or they were trespassers or they owned the premises. There is no evidence brought on record to clarify and factually establish the specific occupancy of room no.12 by respondents. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law - The order of acquittal cannot be interfered with - Appeal dismissed.

Issues Involved:
1. Legality of the acquittal order passed by the Additional Chief Metropolitan Magistrate.
2. Validity of the evidence presented by the prosecution.
3. Admissibility and corroboration of statements recorded under Section 108 of the Customs Act.
4. Procedural lapses and their impact on the case.
5. Principles governing appellate court's interference with an acquittal order.

Detailed Analysis:

1. Legality of the Acquittal Order:
The customs authorities challenged the acquittal order dated 17th January 2001, which acquitted the respondents of offenses under various provisions of the Customs Act 1962 and Imports and Exports (Control) Act 1947. The High Court upheld the Trial Court's decision, agreeing that the prosecution failed to prove its case beyond a reasonable doubt.

2. Validity of the Evidence Presented by the Prosecution:
The prosecution's case was based on a raid conducted on 4th February 1991, where 24 marked gold biscuits, foreign currencies equivalent to ?5,88,750, and Indian currency of ?5,06,000 were seized. However, the High Court noted significant gaps in the prosecution's evidence:
- Only two out of eight cited witnesses testified, and crucial panch witnesses were not examined.
- The panchnama did not independently prove the raid as it lacked signatures from the panch witnesses in a language they understood.
- There was no corroborative evidence to establish the respondents' occupancy of the premises where the contraband was found.

3. Admissibility and Corroboration of Statements Recorded Under Section 108:
The Trial Court held that statements recorded under Section 108 of the Customs Act, without independent corroboration, have no evidentiary value, especially when retracted. The High Court agreed, emphasizing that retracted confessions require corroboration to sustain a conviction. The court referenced previous judgments to support this view, including State of Maharashtra V/s. Harshad Vaherbhai Patel and an unreported judgment in Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar.

4. Procedural Lapses and Their Impact on the Case:
The High Court highlighted several procedural lapses:
- The respondents retracted their statements at the first opportunity, claiming they were obtained under duress.
- The prosecution failed to produce the three other individuals allegedly present during the raid.
- There was no effort to trace the individual named in the seized electricity bill or the subscriber of the telephone connection at the premises.
- The panch witnesses' absence and the lack of independent corroboration further weakened the prosecution's case.

5. Principles Governing Appellate Court's Interference with an Acquittal Order:
The High Court reiterated the principles laid down by the Supreme Court in Chandrappa & Ors. V/s. State of Karnataka, emphasizing that an appellate court should not interfere with an acquittal unless the judgment is perverse or against the weight of evidence. The court also referenced Basalingappa V/s. Mudibasappa to explain the term "perverse" as understood in law. Given the double presumption of innocence in favor of the accused, the High Court found no compelling reason to overturn the acquittal.

Conclusion:
The High Court dismissed the appeal, finding no reason to interfere with the impugned judgment. The court noted that more than 19 years had passed since the acquittal, further reinforcing the decision to uphold the Trial Court's judgment. The prosecution's failure to provide corroborative evidence and the procedural lapses significantly influenced the court's decision to dismiss the appeal.

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