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TMI Blog2014 (9) TMI 377X X X X Extracts X X X X X X X X Extracts X X X X ..... letter either destroyed or misplaced or lost during the course of transaction. - So, the entire prosecution case depends upon the ocular version not only of the seizing party but also upon the opinion of the expert. The wrist watch movement bears some marks and it was claimed by the customs officers that those marks are made of foreign country but it was not proved beyond all reasonable doubt seizure witnesses were not produced though the cash were seized but there is no satisfactory explanation whether these seized cash were sale proceed of the smuggled goods. Moreover, no attempt was made on behalf of the customs officers to produce seizure witness to prove this case beyond all reasonable doubt or to prove that the wrist watch movement falls within the purview of prohibitory order. - revenue appeal dismissed - Decided against the revenue. - C.R.A. No. 253 of 2002 - - - Dated:- 1-10-2012 - Raghunath Bhattacharya, J. Mrs. Shampa Sarkar and Shri Prasenjit Chatterjee, for the Appellant. Shri Amit Bhattacharjee, Subrata Talukdar, Ayan Bhattacharya and Anjan Datta, for the Respondent. JUDGMENT Being aggrieved by and dissatisfied with the order of acquittal pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing that the customs officials seized smuggled wrist watch movement which he bought from different broker without any vouchers and bill and ₹ 30,000/- was sale proceed of the smuggled watch movement but he denied having any locker. On 15-12-1988 and 17-1-1989 accused gave a written statement in Hindi and English admitting his guilt. The customs officials got the seized wrist watch movement examined by M/s. Vijoy Watch Industry, Calcutta - 700001. According to expert the seized articles are made of Swiss, Russia and France. Thus the accused found guilty and commission of offence under Section 135(1)(b) of the Customs Act, 1962. Hence the prosecution case. To counteract the prosecution submission defence as it appears from the trend of the cross-examination of P.Ws is that the seized watches are not of foreign made. The customs officials has obtained the statement of the accused under Section 108 of Customs Act and signature of the accused on seizure list and other connected papers by practicing fraud further the accused during his examination at the time of framing charge and that of examination under Section 313 of Cr.P.C. has pleaded innocence. 3. On the basis of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s. Bejoy Watch Industries having head office at Kolkata. He claimed that he is the only manufacturer of wrist watches in whole of Eastern India. Before going into the details about the evidences let us look into the evidence of the Bank Manager. P.W. 10 happens to be the manager of Dena Bank of Park Circus Branch at the relevant time the locker No. 417 was searched in presence of P.W. 12, one of the owner of locker, Satnam Arora and the customs official. About a one lakh of rupees Indian currency was recovered from the locker and was seized under seizure list and the bank manager signed on it. Just like P.W. 12 P.W. 10 has only stated that there was a locker in the bank bearing No. 417 and Satnam Arora was one of the owner of the bank from the locker was searched by the customs officers in presence of Satnam Arora, Manager of the Bank and the P.W. 12 one lakh of rupees and some jewlleries were recovered from the locker and P.W. 10, the manager of the Bank signed on the seizure list save and except this neither P.W. 10 nor P.W. 12 have stated anything which help the prosecution case or defence case in any way. So, both the P.W. 10 and P.W. 12 may be categorized as formal witness. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms officials in this regard. Learned Counsel for the customs Ms. Sarkar in her usual fairness have stated that she had no information whether customs officers had made any enquiry or not in this regard. Why the signatures are different and why the particular witnesses signed in one exhibit in both capital and small letter. Other exhibit in capital letter this raised a serious doubt in the mind of the Court regarding the authenticity of seizure. 6. After all, one big question is - what must be the reasons of these excise officials - all public servants supposedly dedicated to their duties - being disbelieved. It is generally expected of public servants that they perform their duties faithfully and sincerely and a presumption under Section 114 of the Evidence Act can be drawn that they perform their duties in the ordinary course of business and perform it obediently and with right earnest. Their trustworthiness is ingrained in the nature of the job they do, in the fair amount of etical standard they are supposed to maintain and it is ordinarily presumed, they conform to truth and eschew falsehood. 7. It is further mentioned that it was quite difficult to disbelieve the statemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovements are of Swiss origin but the learned Trial court has failed to find any reason opinion of the expert to that effect. P.W. 13, the expert contended that he received a letter from Mr. Mazumder, Superintendent of Customs with a request to give number embossed in wrist watch movement made in Russia, France and Switzerland. On 8-3-1989 he gave his reply to that effect to the customs officers but said letter was not produced before the Court below. Moreover, none of the witnesses have stated that said letter either destroyed or misplaced or lost during the course of transaction. P.W. 13 claimed that he was the sole manufacturer of the wrist watch in Eastern India but his verbal claim was not supported by any cogent document. So, the entire prosecution case depends upon the ocular version not only of the seizing party but also upon the opinion of the expert. Practically no documents were produced in order to substantiate the ocular version of the witnesses. Though Ms. Sarkar has made a desperate attempt to prove her case beyond all reasonable doubt yet I think that she has miserably failed to fill up the lacuna created by the witnesses adduced on behalf of the prosecution. 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fied though rupees one lakh were recovered and seized from the locker of Satnam Arora. In addition to this expert has failed to produce a letter from the customs authority from where it may be ascertained that they seek opinion and that he was not expert but opined only from his experience so that can be easily concluded that claim of P.W. 13 as an expert is not proved on doubt and his evidence is not at all trustworthy. And after going through all the decisions cited by the learned Counsel for the accused person I do not like to elaborate this judgment as I have already discussed that expert was not examined. The wrist watch movement bears some marks and it was claimed by the customs officers that those marks are made of foreign country but it was not proved beyond all reasonable doubt seizure witnesses were not produced though the cash were seized but there is no satisfactory explanation whether these seized cash were sale proceed of the smuggled goods. Moreover, no attempt was made on behalf of the customs officers to produce seizure witness to prove this case beyond all reasonable doubt or to prove that the wrist watch movement falls within the purview of prohibitory order. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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