9911796707
TMI Blog2014 (4) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... the Gold (Control) Act, 1968. The said prosecution has emerged from the complaint filed by Assistant Collector of Customs, Marine and Preventive Wings, Bombay, Shri C.C. Nagpure against Respondent No. 1, of commission of such offences. 2. According to the said prosecution in pursuance of a confidential information received at Central Intelligence Unit, Marine and Preventive, Bombay Customs on 19-11-1987; PW 1 Shri Sudhir Kulkarni, Inspector of Marine and Preventive Customs at about 14.00 hours had been to Dadar T.T. in the vicinity of the Preetam Hotel. One officer and two peon were accompanying PW 1. Informant had also been to the said spot and he was present when PW 1 reached the said spot. The informant at that stage pointed one Su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 questioning him. According to PW 2, the respondent No. 1 wrote his statement and signed the same and PW 2 counter-signed the statement. PW 2 recorded further statement of the respondent on the next date. Similarly on 8th December, 1987, PW 2 recorded the statement of Tekali Tembrika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs of Customs and he had to accompany them to their office for explaining the things to the officer and he would be treated as witness. He denied that the box was opened in presence of panch witnesses and the same was found containing the gold bars having foreign markings. He claimed that on the next day in the morning he was shown the box by one officer and told that in the said box he had found gold biscuit and sweetmeat. He claimed that however no gold was shown to him. He denied receipt of any summons under Section 108 of Customs Act, 1962, though he admitted that his purported statement was in his handwriting, he denied the same being voluntary statement. He claimed that Custom Officer, after showing him some writing in English has ask ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 108 of the Customs Act. She urged that the view taken by the Trial Court of the prosecution evidence is not only erroneous but perverse. It was urged that the Trial Court failed to properly appreciate the evidence of the prosecution as leaving aside, normal discrepancy arising in the evidence of even honest witnesses, appreciating the said evidence lead to the conclusion of the prosecution having established the commission of offence by the accused. She urged that the judgment delivered by the Trial Court, being not only erroneous but perverse and not being based upon the surface at the trial, the same deserves to be quashed and set aside and so also order of acquittal passed in favour of the respondent. She urged that this guilt of res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nchanama without seeing sweetmeat box and its contents, for the reasons given by the Trial Court, can neither be said to be erroneous nor perverse. 12. In the instant case, 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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