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TMI Blog2010 (9) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... Advocates, for the Respondent. [Judgment]. This appeal is filed by the Assistant Collector of Customs (Preventive), New Custom House, Mangalore, through Senior Central Government Standing Counsel against acquittal of respondents/accused 3 4 (hereinafter referred to as accused 3 4) for an offence punishable under Section 135(1)(b) of the Customs Act, 1962 (for short, the Act ). Accused No. 1-Prabhakar Shetty died even before summons was served on him. Accused No. 2-Leo Sequeira was absconding, therefore, case against him was separated. Accused 3 4 were tried and acquitted for aforestated offence. 2. It is the case of prosecution that on 12-1-1993 at 7 p.m., on receipt of credible information about smuggling of silver bricks, detecting party consisting of PW2-S. Padmanabhan, PW3- P. Vijayan PW4 -Pakshi Rajan, who were then working as Intelligence officers in the office of Customs Officer at Mangalore, proceeded to B.C. Road cross, Bantwal and they were waiting for a lorry coming from Mangalore side. At that time, lorry bearing No. CNX 5524 driven by accused No. 2 came from Mangalore side. When detecting party tried to intercept, the driver did not stop the lorry, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal Procedure. 7. This is not an appeal filed under Section 377(2) Cr. P.C, for enhancement of sentence. This is an appeal filed against judgment of acquittal filed under Section 378(1) Cr. P.C. Therefore, objection raised regarding maintainability of appeal has no basis. 8. The learned trial Judge has acquitted the accused Nos. 3 and 4 by recording the following findings : (1) The prosecution has failed to prove that the seized contraband was of silver metal and it was a foreign origin. (2) The prosecution has failed to prove that accused Nos. 3 and 4 had conscious possession of the said contraband and contraband was seized from possession of accused 3 and 4. (3) The prosecution has not obtained valid sanction to prosecute the accused. The evidence in proof of interception of the vehicle and the seizure of contraband is not satisfactory. 9. In view of abatement of appeal against accused No. 1, separation of case against accused No. 2 and acquittal of accused 3 4, the following points would arise for determination :- (1) Whether the prosecution has proved beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 4 were smuggling 75 silver brick ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edible information about the transportation of smuggled silver bricks in lorry bearing No. CNX 5524 from Mangalore to Bangalore. On 12-1-1993 at about 7.00 p.m., PWs. 3 and 4 and another officer secured panch witnesses namely PW-5 Ravi and PW-6 Jayaram and proceeded in their jeeps towards Bantwal. They reached B.C. road cross at 8.00 p.m. At 8.45 p.m., they saw lorry bearing No. CNX 5524 coming from Mangalore side. They gave a signal to stop the lorry. The driver did not stop the lorry. They chased the lorry to a distance of 2 kms and intercepted the lorry. After intercepting lorry, they questioned the driver of the lorry (accused No. 2), who told them that he was transporting chemical fertilizer. He gave invoices in support of the same. PW-3 and others questioned accused No. 2 that they have credible information that the lorry was used for transporting smuggled silver bricks. Accused No. 2 contacted accused No. 1 and told other officials that they had concealed gunny bags containing silver bricks under the bags of chemical fertilizers. Thereafter, the tarpaulin of lorry was removed. Some of the bags of chemical fertilizers were removed in the middle and they found gunny bags conta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the lorry. The detection officers chased the lorry in their car and intercepted the lorry at a distance of two Kms from B.C. road cross. PW-4 questioned the driver of lorry (accused No. 2) and learnt that lorry was used for transportation of bags of chemical fertilizer. When accused No. 3 was asked to remove the turpentine, accused No. 2 contacted accused No. 1 and told that they had concealed the silver bricks beneath the bags of chemical fertilizer. PW-4 removed some of the fertilizer bags from the body of the lorry and found bags containing silver bricks had been concealed beneath the bags of chemical fertilizers, by then it was 12.00 in the mid night. Therefore, they brought the lorry and accused to the office of Assistant Collector of D.R.I at Mangalore. They learnt the names of accused viz Prabhakar Shetty (accused No. 1), Leo Sequeira, (accused No. 2), John Bastin Lopes (Accused No. 3) and Sudhakar (accused No. 4). The personal search of accused did not yield any incriminating materials. At this juncture, it is relevant to state PW-4 has not deposed that accused Nos. 3 and 4 were sitting in the cabin of the lorry when the lorry was intercepted. PW-4 has deposed about the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nts when they were examined by the officers of the Customs Department in the office of DRI. PW-7 John Simon has deposed that on 13-1-1993, he recorded the statement of Sudhakar (accused No. 4) in the office of DRI at Mangalore. At the relevant time, he was working as an Intelligence Officer, DRI at Bangalore. He had come to Mangalore on 11-1-1993, as per the directions of Deputy Director of DRI, who was in charge of DRI in the State of Karnataka. Accused No. 4 Sudhakar is an illiterate person. Therefore, PW-7 explained him the provisions of Section 108 of Customs Ace. He has identified the statement of Sudhakar as Ex. P-8. During cross-examination, he has reiterated that accused No. 4 - Sudhakar had given the statement as per Ex.P-8. At this juncture, it is relevant to state that accused Nos. 3 and 4 were produced before the jurisdictional Magistrate on 13-1-1993. As per the evidence on record, the statement of accused No. 4 was recorded on 13-1-1993. 18. It is seen from the records that on 14-1-1993, PW-2 Padmanabhan had submitted a remand application giving the details of interception of lorry and seizure of silver bricks. At paragraph 4 of the remand application, it is state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... per his directions. There was no investigation against said Ganesha and he was not prosecuted. When accused filed bail application, at the earliest point of time, they have denied to have made any statements before the Customs Officers. Accused No. 3 was examined as DW-1. He has deposed that on 11-1-1993, at about 5.00 a.m., he was travelling from Honnavara to Belgaum in a tourist car. When he was travelling in a car near Khanapura, he saw a lorry had broken down and it had been parked by the side of the road. Accused No. 2 whom he knew earlier, was found near the lorry. He enquired accused No. 2 as to why he was standing there. At that time, 4 or 5 persons surrounded him and brought him and questioned him as to why he was talking to accused No. 2. Accused No. 3 told him that accused No. 2 is known to him and therefore, he was talking with him. Thereafter, he was retained by the officers of the customs. The lorry was got repaired and on the said day at about 12.00 p.m., accused No. 3 was brought in a Maruthi Jipsi to DRI office at Mangalore. He had also seen accused No. 4 near the lorry. During cross-examination of DW-1, apart from suggesting that he had made a statement as pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lorry of accused No. 2 for the purpose of transporting contraband. The evidence on record does not disclose that accused Nos. 3 and 4 were present when the bags containing silver bricks were loaded into lorry and they were covered with the bags of chemical fertilizers. In view of the above discussion, I hold that the case of the prosecution that accused Nos. 3 and 4 apprehended when the lorry was intercepted is not proved beyond reasonable doubt. The panch witnesses, independent witnesses (PWs-5 and 6) have not deposed about the presence of accused Nos. 3 and 4 when the lorry was intercepted. The complainant has not produced the documents (though seized by the officials of the Customs Department) to prove the movements of the lorry from 8-1-1993 till it was intercepted at about 9.00 p.m., on 13-1-1993. Above all, the evidence of the prosecution does not reveal that accused Nos. 3 and 4 were aware of the concealment of silver bricks in the lorry. They had conscious possession of silver bricks. Even if the statements made by accused u/s 108 of the Customs Act, are taken into consideration, they would reveal that accused Nos. 3 and 4 had been engaged by accused Nos. 1 and 2 for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as present when silver bricks were loaded into lorry. The statement alleged to have been given by accused No. 3 was based on information given to him by accused No. 1. The statement given by accused No. 4 indicates he does not know English language. There was no impediment to record his statement in Kannada Language. The evidence on record does not indicate after statement of accused No. 4 was recorded, it was explained to him in Kannada Language before accused No. 4 affixed his LTM to his statement. In view of the above discrepant evidence, these statements cannot be used as corroborative evidence. 28. Therefore, the prosecution has failed to prove beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 4 were smuggling 75 silver bricks weighing 2561.130 kilograms in lorry bearing No. CNX-5524 and have reasons to believe that silver bricks were liable for confiscation under Section 111 of the Act, thereby committed an offence punishable under Section 135(1}(b) of the Act. 29. The competence of sanction order has been called into question. The sanction order as per Ex. P.10 indicates that the Sanctioning Authority namely Collector of Customs at Bangalore on perusa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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