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TMI Blog2010 (7) TMI 693X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 108 of the Customs Act had to be examined in conjunction with the other corroborative evidence on the record - Decided against the assessee - 153 of 2007 - - - Dated:- 27-9-2010 - Hima Kohli, J. REPRESENTED BY : Shri S.C. Aggarwala, Advocate, for the Petitioner. Shri Rajiv Davar, Advocate, for the Respondent. [Judgment]. - The present petition is filed by the Department of Customs under Section 378(iv) of the Cr.PC praying inter alia for leave to appeal against the judgment dated 23-4-2007 passed by the learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi, dismissing the complaint of the petitioner against the respondent for the offence punishable under Section 135(1)(a) of the Customs Act, 1962 (hereinafter referred to as the Act ), on the ground that the prosecution had not been able to prove and substantiate the allegations and acquitting the respondent. 2. The relevant facts leading to filing of the aforesaid complaint are that on 29-9-1998, the respondent, holder of an Indian passport, reported in the departure hall of IGI Airport, New Delhi for going to Moscow by Aeroflot Flight. After completing his immigration formalities, wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filed the accompanying appeal. 4. Counsel for the petitioner submitted that while passing the impugned judgment, the learned ACMM completely ignored the voluntary statement of the respondent made under Section 108 of the Act and the Panchnama duly signed by him. He submitted that the provisions of Section 58 as also 106 of the Indian Evidence Act, 1872 (hereinafter referred to as the Evidence Act ) were not taken into consideration. He further argued that the trial court failed to appreciate the fact that there was no reason for the Department to have falsely implicated the respondent and once possession was established, the onus shifted to the respondent to rebut the presumption against him, which he failed to discharge. He urged that in the light of the evidence placed on the record, the learned ACMM erred in concluding that the Department had failed to prove that the accused had not declared the foreign currency before the proper officer . In support, he relied on the evidence of PW1 and the Panchnama and stated that merely because the Panchnama was not proved by the two Panchas, it does not mean that the same could not be relied upon as the same was also signed by PW1, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re asserted by him and having failed to do so, Section 106 of the Evidence Act could not be invoked against the respondent. Lastly, counsel for the respondent asserted that if the findings of acquittal, as reached by the trial court, cannot be said to be unreasonable, then the appellate Court should not disturb it in an appeal against acquittal even if it was possible to reach at a different conclusion on the basis of the material on the record and if two views are reasonably possible, on the basis of the evidence on the record, the appellate Court should not interfere simply because it would have taken a different view if the case had been tried by it. He supported his submissions by referring to the following judgments :- (i) Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of Travancore-Cochin - 1953 AIR (SC) 478 (ii) Akoijam Ranbir Singh v. The Government of Manipur - AIR 1976 SC 2191 (iii) Babu and Others v. State of Uttar Pradesh - 1983 Crl. L.J. 334 (iv) The State v. Makund Harijan Anr. - 1983 Crl. L.J. 1870 (v) Chandigarh Administration, Chandigarh v. Dharam Singh - AIR 1985 SC 1671 (vi) Abid Malik v. Union of India Anr. - 20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice. (emphasis added) 8. The aforesaid judgment has been reiterated from time to time in a catena of decisions starting from the case of Nur Mohd. v. Emperor - AIR 1945 PC 151; Prandas v. State - AIR 1954 SC 36; Surajpal Singh v. State - 1952 CrI. L.J. 331; Ajmer Singh v. State of Punjab - 1953 Crl. L.J. 521; Atley v. State of UP - 1955 Crl. L.J. 1653; Aher Raja Khima v. State of Saurashtra - 1956 Crl. L.J. 426; Sanwat Singh v. State of Rajasthan - 1961 Crl. L.J. 766; M.G. Agarwal v. State of Maharashtra [1963] 2 SCR 405; Shivaji Sahabrao Bobade v. State of Maharashtra - 1973 Crl. L.J. 1783; K. Gopal Reddy v. State of A.P. - 1980 Crl. L.J. 812, Ramesh Babulal Doshi v. State of Gujarat - 1996 Crl. L.J. 2867; and has been echoed down the years, to fi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he valuation of the evidence done by the learned ACMM suffers from any illegality, arbitrariness, perversity which deserves interference and to verify if the main grounds on which, the trial court has based its order, are reasonable and plausible. A perusal of the impugned judgment shows that the trial court has analysed at length the testimony of PW1, Sh. Y.S. Rawat, the second customs officer in plain clothes, who stopped the accused when he was proceeding towards the security hold area, to ask whether he was carrying any unauthorized foreign currency or narcotic drugs and of PW2 Smt. S. Mishra, the Superintendent of the Department on duty at the airport on the relevant date, who recorded the statement of the accused under Section 108 of the Act. After perusing the deposition of the aforesaid witnesses, the learned ACMM held that the complaint filed by the petitioner pursuant to the authorization had been proved in accordance with law, and the notice under Section 102 of the Act given by PW1 to the accused as also drawing of the Panchnama of recovery and seizure had also been proved in accordance with law. But it was observed in the judgment that it was an admitted case of the pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he was carrying. It was also noticed that the recovery of currency had not been disputed by the accused. The trial court referred to Section 77 of the Act, which mandates that for the purposes of clearance of baggage, declaration of the same is required to be made to the proper officer and held that in the present case, the uniformed customs officer, who first intercepted the accused at the Customs Counter, was the proper officer , who had not been cited or examined by the prosecution. In the light of the aforesaid findings, the trial court concluded that the only corroborative evidence was the statement of the accused under Section 108 of the Act and the Department had failed to prove that the accused had not declared the foreign currency before the proper officer , nor was it able to establish that the accused had requisite knowledge or dishonest intention to fraudulently evade or attempt to evade the duty chargeable on the articles. Lastly, it was held that as the case of the petitioner was that the accused had attempted to evade the prohibition imposed on the export of foreign currency, it was necessary for it to place on record the details of such prohibitions to ascertai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... person, though he admitted that he had signed the same. PW1 was unable to state in his cross-examination as to the significance of the handwritten No. S-39/99 and the author thereof. He admitted that the seals on the back side of the envelope had been broken and there was some interpolation made and further that on the slip, the name of the accused was not mentioned though his own signatures were there. He admitted in his cross-examination that the seals on the Panchnama were broken partially and he did not remember the initials on the seals. He could not give the names of the witnesses of the Panchnama and as to how they reached at the spot. 15. Contradictions in the deposition of PW1 and PW2 on material points were noticed by the learned ACMM, particularly, the manner in which PW1 had taken away the currency to some other place on the ground that the same had to be weighed. This fact was contradicted by PW2, who was the superior officer of PW1 and stated in her cross-examination that she was not aware of the fact that the seizing officer had taken out the currency from the departure hall for the purpose of weighing. Pertinently, neither of the two independent witnesses to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , who took him downstairs to let him know if the declaration was required to made and further that he was never intercepted by any person or questioned and he had himself approached the customs officers and informed them that he was carrying certain amount of currency for which, he enquired whether any declaration was required to be made by him. 18. All the aforesaid facts and circumstances when taken together, leads this Court to conclude that the decision arrived at by the learned ACMM, on the basis of the evidence on the record, is a plausible one. There does not appear any substantial or compelling reason for this Court to take a different view from that taken in the impugned judgment. Nor is it a case where admissible evidence has been overlooked. The retracted statement of the accused under Section 108 of the Customs Act had to be examined in conjunction with the other corroborative evidence on the record. When so examined, there does not appear any serious infirmity in the view taken in the impugned judgment; nor can it be stated that there has been any miscarriage of justice in acquitting the respondent. 19. Having carefully perused the impugned judgment of acquittal, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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