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TMI Blog2014 (4) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... the said witnesses PW 1 being involved in a raid, was an interested witness, while PW 3 was the independent witness. For coming to the conclusion about guilt of the respondent, it was necessary for the prosecution to prove that the respondent was in conscious possession of the contraband article i.e. the gold when he was prohibited by raiding party at the spot - There being paucity of evidence of independent witnesses regarding the said aspect, the Trial Court had declined to draw such inference on the basis of the evidence of the members of the raiding party i.e. PW 1 and PW 4 - The said conclusion drawn by the Trial Court being based upon the relevant facts of the evidence of the members of the raiding party and particularly that of PW 1 and of the panch witnesses and absence of signatures of panch witnesses on the box, can neither be said to be perverse nor can be de hors the evidence of the witnesses - The reasons given also cannot be said to be erroneous or de hors material surfaced at the trial - Thus, finding reached by the Trial Court of the defence version being true also cannot be said to be erroneous or perverse in light of the reasons given for the same - The order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce and along with them the said person was taken to the office of the PW 1. The box was opened in the office in presence of panchas and found containing 4 gold bars of 10 tolas each with foreign markings concealed in the Burfi in the said box. The said person was not having any documents to show legal possession of gold. The same gave reason to believe of the gold being the smuggled gold and liable for confiscation under Gold (Control) Act. Gold of value Rs. 1,50,000/- was seized under the panchanama. PW 1 has written the said panchanama. The panch No. 1 Shri Lalit Malkan read over the panchanama to other panch. He accepted the same and both of them signed the said panchanama and so also PW 1. 4. After completion of the primary enquiry and processing of the papers and receipt of sanction and authorization from Collector of Customs. The complaint against same person i.e. Respondent No. 1 was filed by Assistant Collector of Customs Shri C.C. Nagpure. In the meanwhile, PW 2 Sitaram Vishnu Pangarkar, Superintendent of Customs and Central Excise, Bombay, after issuing summons to the respondent No. 1 under Section 108 of the Customs Act, 1962 recorded his statement in English after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g, he denied the same being voluntary statement. He claimed that Custom Officer, after showing him some writing in English has asked him to sign the same by telling that thereafter he would be released on the next morning. The said officer gave him option to copy down the statement and sign the same. Respondent No. 1 claimed that he cannot speak English but he can write down English. He claimed that therefore he copied down the statement given by the Officer and signed the same and Exhibit P 7 being the said statement but not the voluntary statement made by him and having written the same as in the circumstances stated by him. 6. The Trial Court, after assessing evidence of the said witnesses in light of the submission canvassed, came to the conclusion that the prosecution had failed to establish the commission of the offences for which respondent No. 1 was charged and acquitted him. 7. Smt. A.A. Mane, learned Special Public Prosecutor contended that fact of gold being seized from the respondent was duly established by adducing the evidence of PW 1 who had carried raid effected after keeping surveillance at the spot near Pritam Hotel and through evidence of panch witnesses PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned witnesses regarding which the discussion is made in the said paragraph. Perusal of the said discussion reveals that on the basis of such a material surfaced during the prosecution evidence, the Trial Court had come to the conclusion of their being variance regarding the place at which the seizure panchnama was drawn i.e. whether drawn at the spot of the seizure rear of Pritam Hotel or as claimed by PW 1 in the office of the Customs. It also came to the conclusion of their existing variance regarding the place at which both the panchas were called as PW 1 claimed that he had taken both panch witnesses from the spot when the accused was taken to the office of Marine and Preventive, while first panch PW 3 claimed that after he had reached office of the customs along with PW 1, the second panch was called after recording of panchnama has began. It is difficult to find any fault with the observations made by the Trial Court that out of the said witnesses PW 1 being involved in a raid, was an interested witness, while PW 3 was the independent witness. 11. The said discussion also reveals that PW 3 has admitted that during the enquiry respondent had disclosed that he had r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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