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TMI Blog1979 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Excise and Customs, Dahanu. 4. A.R. Alli Sub-Inspector, Central Excise and Customs, Tarapur 5. M.M. Keer, Sepoys, Central Excise and Customs, Dahanu. 6. M.C. Nikam. TABLE II 7. S.B. Kurudkar Sepoys, Central Excise and Customs, Tarapur. 8. D.B. Pednekar 9. Y.S. Sawant, 10. J.V. Pujare 11. B.S. Cavas. TABLE III 12. Y.G.Ambhire Fisherman and Mason at Dhakte-Dahanu. 13. Indur T. Dadlani Trader in Textiles, 27, Everest, Peddar Road, Bombay. 14. Fakira Mahamed Dealer in ready-made garments, Room No. 10, 2nd Lane, Kamathipura, Bombay. This classification would now show that accused Nos. 1 to 3, 5 and 6 are officials of the Central Excise and Customs Department stationed at Dahanu while those in Table II are officials of the same category stationed at Tarapur. Table III, on the other hand, contains the names of three non-official hailing from Dhakte, Dahanu and Bombay. 3. The 14 accused were tried for offences under Sections 120-B, 161, 165-A and 218 of the Indian Penal Code, Section 5(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, i.e., on the 16th February 1967 he flew from Baharin to New Delhi (vide document exhibit 76). On the next day, Ramchandani (P.W.1.) who was then working as Rummaging Inspector, Town Intelligence, Customs Department, Bombay, received secret information to the effect that the two air journeys undertaken by accused No. 13 were made with the object of smuggling foreign goods into India and that such goods consisting mainly of textiles, medicines and watches valued in all at about Rs. 20 lakhs were to be brought to India by sea during the next few days. The informant promised to secure further details and convey the same to Ramchandani (P.W.1.) All this information was recorded by Ramchandani (P.W.1.) in document exhibit 29. 8. On the 1st of March 1967 the informant visited Ramchandani (P.W.1) again and told him that smuggled goods were to arrive near Poisar and would be transported from there in a truck. Ramchandani (P.W.1) contacted the Assistant Collector of Customs Mr. Ganguli (P.W.2) and the two of them accompanied by other officials of the Customs Department as, also by police personnel visited the Poisar seashore but were unable to trace any smuggled goods or the truck ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all where Ganguli (P.W.2) was talking to accused No. 1. On an enquiry from Ganguli as to whether those packages formed part of the haul, accused No. 1 replied that That was not so and added that all the seized goods had been deposited in the muddemal room. At this juncture, Ganguli (P.W.2) wanted to have a look at the seized goods and accused No. 4 took him to the muddemal room where Ganguli was shown the 39 packages. Ganguli (P.W.2) then enquired from accused No. 1 about the reason for the presence of unattached packages lying in the hall. Accused No. 1 stated that the same were meant for the use of the Customs staff including himself. 10. Ganguli's informant had further told him that accused No. 13 had despatched a truck to transport the goods, that the truck-driver had been given a sum of Rs. 50,000/- by accused No. 13, that the truck, while it was preparing to leave, was found to be in need of some repairs and that accused No. 13 had arranged to send some spare parts for it. Ganguli's suspicion having been aroused by what had transpired at the Tarapur Customs House he at once confronted accused No. 1 with a question as to what had happened to the money which the truck-dri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the room occupied by accused No. 4, which was then placed in charge of a police guard. 13. Ganguli (P.W.2) contacted higher officers of the Customs and Police Departments on telephones and in response to his call, Superintendent of Police H.F. Almeida (P.W.37) and Deputy Superintendent of Police, C.B.I Bombay N.P. Rege (P.W.22) reached the Tarapur Customs House at 4.15 P.M. They were apprised of the details by Ganguli (P.W.2) whose complaint was recorded by D.S.P. Rege (P.W.22). A Panchanama of the currency notes worth Rs. 48,800/- produced by accused Nos. 1 to 11 was prepared. It was at this stage that exhibit 31 was signed by Ganguli (P.W.2) and handed over to Rege (P.W.22). Patankar (P.W.9) then made a Panchanama (exhibit 46 of the articles which accused Nos. 1 to 11 had received from accused No. 13 as part of the illegal gratification. The completion of the panchanama took quite a few hours and went on into the 4th March 1967. 14. 52 witnesses were produced at the trial in support of the prosecution case. They included residents of Varor who were expected to depose that 103 packages had arrived at the seashore either on the 28th February or the 1st of March 1967, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oduced by the accused within the sight of Saninani (P.W. 11), the latter was then not within the hearing of the accused and the concerned Customs Officials. He also arrived at a finding that the currency notes and the goods described in exhibits 31 and 46 were received by accused Nos. 1 to 11 from accused No. 13. 17. In relation to the confessions, the High Court came to a different conclusion. It held : "According to us, the presence of the Police seems to have been procured because the Customs Officers had a lurking suspicion about the conduct and integrity of the Excise Staff. They were deliberately kept present to overawe the Excise Officers and that object seems to have succeeded. If that is so all the incriminating statements made by accused Nos. 1 to 11 either in relation to money or the goods will have to be eliminated from consideration altogether. We hold that the entire evidence of the Customs Officers and Police Officer Sainani with regard to the confessional statements of accused Nos. 1 to 11 is inadmissible and cannot be relied upon as evidence against the accused." 18. Nevertheless the High Court regarded documents exhibits 31 and 46 as forming a correct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying Indian currency notes, where did so much money come from?" 19. In view of the fact that witnesses from Varor had turned hostile to the prosecution, High Court held that there was no evidence about the number of packages which landed at the Varor seashore. However, it formed the opinion that such number was certainly much greater than 39. 20. It was in these premises that the High Court passed the impugned judgment. 21. We fully agree with the High Court, for the reasons recorded by it (and the same need not be repeated here), that the confessions attributed to the accused are hit by Section 25 of the Evidence Act and are inadmissible in evidence. But we do not see eye to eye with the High Court in the opinion it has formed with regard to the other evidence. The question is not of Ganguli (P.W. 2) having committed some errors of procedure but of his reliability and that of the other prosecution witnesses who took part in the proceedings at the Tarapur Customs House on the 3rd and 4th March 1967. In this connection we may straightway observe that we look upon document exhibit P-31 which forms the corner-stone of the prosecution case, with great suspicion. Our r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arrival of senior officers of police. In the circumstances we are of the opinion that exhibits 31 and 46 cannot from, all by themselves, a basis of the conviction of any of the accused and, on the other hand, must be ignored along with the related oral testimony of Ganguli (P.W. 2) and other witnesses for the prosecution, by reason of the suspicion attaching to them as documents not reliable enough for proof of the fact that the currency notes and the goods described in them were produced by accused Nos. 1 to 11 and in the circumstances put forwarded by the prosecution in that behalf. 22. The High Court appears to have acted on documents exhibits 31 and 46 not so much because of their intrinsic worth but mainly for the reason that the defence version was regarded by it as a fantacy. It thought that the contraband articles lying unaccounted for in various places forming part of the Tarapur Customs House could not have been found there unless they were part of the booty received by accused Nos. 1 to 11 from accused No. 13. It also rejected as preposterous a suggestion made by counsel for the defence that the amount of Rs. 48,800 could have been recovered from the packages in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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