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TMI Blog2020 (1) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... nts were in occupation of the said premises, whether they were on leave and license basis or they were trespassers or they owned the premises. There is no evidence brought on record to clarify and factually establish the specific occupancy of room no.12 by respondents. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case. The opinion of the Trial Court cannot be held to be illegal or improper or contrary to law - The order of acquittal cannot be interfered with - Appeal dismissed. - CRIMINAL APPEAL NO.621 OF 2001 - - - Dated:- 7-1-2020 - K.R.SHRIRAM, J. Ms. Anuradha A. Mane for appellant. Mr. Rajeev Matkar for respondent nos.1 and 2. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation. Thereafter, further investigation was carried out by appellants after issuing summons under Section 108 of the Customs Act, 1962. Statements of respondent nos.1 and 2 were recorded and those statements are at Exhibit P-4 and P-11, respectively. After completion of investigation and after compliance of the provisions of law, complaint against respondents was filed. 4. The Trial Court framed charges and read out the same to the accused. Both of them denied the charge. According to respondents, they were poor villagers who had come to Mumbai in search of job and they were looking for job. Somebody gave them the address of the said premises and respondents went to the said premises looking for work. They found three persons in the room and while they were making inquiries from those people about work, a number of persons rushed into the room and disclosed their identity to be DRI Officers. Despite respondents telling them that they were there only few minutes before in search of work and that they may be allowed to go, the DRI Officers told them that they cannot leave and they were under arrest. After some time, the DRI Officers took them alongwith the three oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed but they denied having any connection with the seized gold and seized currency and they were permitted to go. Those statements have not been produced. The retraction and the response are at Exhibit D-1 and D-2, respectively. It has to be noted that in the panchnama recorded at the time of raid, there is no mention of these three persons. Even the remand application dated 5th February 1991 does not mention about these three persons were taken into custody and that their statement was recorded. On 5th February 1991 when respondents were produced for remand and jail custody was granted till 11th February 1991, respondents were not represented by any advocate and it does not look like they were provided any legal assistance either. On 11th February 1991, when accused were produced before the Magistrate and when accused also filed an application for bail, the retraction has been filed. Therefore, on the first opportunity respondents filed retraction. 7. According to prosecution, the statements of both accused were voluntarily and correctly recorded without use of any force or inducement. The Trial Court after considering the evidence recorded and the facts and circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt in carrying contraband gold, the accused could be straightaway sent to jail without the trial court having recorded any evidence or conducting a trial. 9. Various Courts have kept all these things in mind and come to a conclusion that in the absence of any corroboration by an independent and reliable witness, a statement recorded under Section 108 in isolation could not be relied upon. For this, I find support in State of Maharashtra V/s. Harshad Vaherbhai Patel Ors. 2012 (1) Bom.C.R.(Cri)500 and unreported judgment of this court in Shri Malki Singh V/s. Suresh Kumar Himatlal Parmar in Criminal Appeal No.228 of 1999 delivered on 29-11-2019. Paragraph 8 of Malki Singh s judgment reads as under : 8. It is no doubt true that under Section 104 of the Customs Act 1962, the Customs Officer is vested with power to arrest if he has reason to believe that any person has committed an offence punishable under Section 135 or 135A of the Customs Act. Under Section 108 of the Customs Act, the Customs Officer is also vested with power to summon persons to give evidence documents and all persons so summoned are bound to attend, on being summoned. The statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said premises, but in whose name the telephone connection was and why the prosecution did not make any effort to trace out the subscriber of the telephone, is also not explained. So therefore, no effort has been made to establish occupancy of the said premises by the two respondents. There is no evidence to even show how respondents were in occupation of the said premises, whether they were on leave and license basis or they were trespassers or they owned the premises. There is no evidence brought on record to clarify and factually establish the specific occupancy of room no.12 by respondents. 12. The Apex Court in Chandrappa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word perverse in terms as understood in law has been defined to mean against the weight of evidence . We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. 14. There is an acquittal and therefore, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of their innocence is further reinforced, reaffirmed and strengthened by the Trial Court. For acquitting accused, the Trial Court observed that the prosecution had failed to prove its case. 15. In the c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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