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TMI Blog2019 (10) TMI 1394X X X X Extracts X X X X X X X X Extracts X X X X ..... 2 of 2003 and after completing the formalities, framed charges against the respondents for the offences under Sections 132, 135(1)(A)(ii) r/w.135(A) of the Customs Act. 3. During investigation, the respondent in Crl.A.No.59 of 2009 was absconded and therefore, his case was split up in C.C.No.4 of 2004. 4. After completing the formalities, on the side of the appellant, as many as 7 witnesses were examined as PW.1 to PW.7 and 13 documents were marked as Exs.P1 to P13, besides marking two Material Objects as M.Os.1 and 2 and one Court document as Ex.C1 and after completing the prosecution evidences, when incriminating circumstances culled out from the prosecution witnesses were put before the accused, they denied as false and no oral and documentary evidence was produced on the side of the defence. 5. After completing the trial and hearing the arguments on either side, the learned Additional Chief Judicial Magistrate, Madurai, by way of separate judgments, acquitted the accused/respondents in both the appeals on the ground that the appellant/prosecution has not proved its case beyond reasonable doubt against the accused/respondents. 6. Challenging the said judgments of the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 of the Customs Act. Further, he would submit that the learned Additional Chief Judicial Magistrate himself visited the customs godown and examined the sandal woods seized by the Department; since the commodity is huge in quantity, it was not produced before the Court; hence the non-production of the seized goods before the Court is not a ground for acquittal. The learned trial Judge also failed to appreciate that the voluntary statements given by the respondents/accused before the Customs Officers are admissible in evidence. 8. He would further submit the learned trial Judge acquitted the respondents mainly on the ground that the sanctioning authority was not examined and the sanctioned order was not proved before the Court and the seized sandal woods have not been produced before the Court and the confession statements given by the respondents/accused were subsequently retracted and further, there is no proof to show that they have attempted to export sandal woods in the name of roofing tiles and also the prosecution failed to prove misdeclaration when the bills were not produced. 9. He would further submit that when the confiscation proceedings was initiated against the resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... though imposed penalty under Section 114 of the Customs Act, subsequently, the Appellate Authority set aside the order of the Customs; though this Court has set aside the order of the Appellate Tribunal, the order passed in the confiscating proceedings under Section 114 of the Customs Act is nothing to do with the criminal case; In the criminal case, the prosecution has to prove its case beyond reasonable doubt and they cannot solely relied on the decision passed by the quasi-judicial authority. Therefore, the learned trial Judge rightly appreciated the entire evidence of the prosecution and disbelieved the case of the prosecution and found that the respondents/accused are not found guilty and acquitted them and there is no merit in the appeals and the appeals are liable to be dismissed and in the appeal against acquittal, accused got double presumption of innocence, unless there is no compelled circumstances warrant, the Appellate Court will not interfere with the judgment of acquittal passed by the trial Court. Unless there is perversity in appreciation of evidence, merely because the other views are possible, normally the Appellate Court will not take a different view and subst ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discharge sandal woods illicitly through Tuticorin Port and wanted suitable persons for doing that job. Accordingly, Rahman Sait @ Nathan suggested the name of Alexander, who is the respondent in Crl.A.No.59 of 2009, who was running M/s.Gilbert Overseas Shipping Company at Tuticorin and in December 1997, he met Dhanapal, who told him that 10 tons of sandal woods were to be smuggled to Singapore and that he contacted the said Alexander, who agreed to arrange it for illicit export and 200 bags of sandal woods were sent to Alexander, which were kept in godown. Since the said Alexander did not pursue the export in the manner as stated by him, the said Rahman Sait @ Nathan (R5), along with Dhanapal (R1), met one Mydeen (R2) of Mannadi, who was an exporter in Chennai and discussed the matter and it appears that the second respondent Mydeen told that he would arrange illicit export through one Janarthanam @ Janar (R3) in Crl.A.No.58 of 2009. Accordingly, he met R3- Janarthanam @ Janar on 02.03.1998 and requested for arranging a godown and the said Janarthanam @ Janar (R3) arranged a godown through his friend Hari Ganga Ram. 13. During investigation, it came to the knowledge of the appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized goods were also not established, since they were not produced before the Court, One Mr.Kalai Mani, who was examined as PW.2, has clearly stated about the sanction of prosecution. Though the officer, who sanctioned the prosecution was not examined in this case, the person who acquainted with the sanction of prosecution proceedings in this case, was examined as PW.2 and he has clearly spoken about the sanction of prosecution and also the sanctioned authority has applied his mind and accorded the sanction and so, mere non-examination of the officer, who has accorded the sanction, is not fatal to the case of the prosecution, when it was corroborated by other witnesses in this case. One Mr.Sriram, I.R.S., was examined as PW.3 and he has clearly deposed that on 10.03.1998, he received secret information about the smuggling of sandal woods and they went to the spot, viz., Tuticorin, Ettayapuram Road and searched the godown at Door No.111 at about 11.30 hours and when he went to the place, the officers enquired the persons, those who were in the godown and recorded their statements and he has also seen the sandal woods and also the Mangalore roofing tiles in the godown and they also r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f roofing tiles, he has not informed to the Customs Authority and therefore, he is also abide the same to the other accused. 17. The prosecution has filed the case for the offence under Section 135(A) of the Customs Act, which is with regard to the offence for the preparation and also Section 135(1)(A)(ii) r/w. 135(A), which is relating to attempt to smuggle through Tuticorin Port to Singapore under the guise of roofing tiles. Though they prepared the bills, but one or some reasons, they could not succeed in this. But the prosecution has filed this case against the respondents for preparation and also attempt to smuggle. On reading of the case of the prosecution and also a perusal of the prosecution witnesses and the statements recorded from the respondents, the prosecution has established the charges as levelled against the respondents. As already stated, mere nonexamination of the sanctioning authority is not fatal to the case of the prosecution. 18. The cases cited by the learned counsel for the respondents are not applicable to the present case on hand. There is no quarrel with the propositions of law laid down by the Hon'ble Supreme Court and also the legal propositions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hreat. But reading of the entire evidence would clearly shows that the statements were voluntary one. 20. Even though it was argued that Janarthanam @ Janar (R3) had retracted the statement and the same was not voluntary one, but others in whose statements he was implicated, had also retracted their statements. Janarthanam @ Janar (R3) was contacted Mydeen (R2) through Sri.Mohan, for export of onions, tiles, etc., After filing the shipping bill by Ramesh (R4), Rahman Sait (R5) informed about sandal woods being part of the consignment and he had immediately asked Ramesh (R4) to cancel the shipping bill, but on intervention by Mydeen (R2) that if he did so, he would involve him, he did not take any further action. But he informed the facts to Ramesh (R4). As he had no knowledge, he could not be charged under Customs Act. The sandal woods were in the process of being packed and there was no attempt made to export the same. On a perusal of the records, it is admitted fact that the said R3 was informed by Rahman Sait about the sandal woods being part of roofing tiles. Inspite of having knowledge, he did not inform the same to the Customs and he rather informed Sri.Mydeen (R2) for monit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... photographs which were produced before the Court as Material Objects it is seen that the penal proceedings were taken by the Department, which was confirmed by this Court and admittedly the respondents have not challenged the order of this Court regarding penalty proceedings. Therefore, in these circumstances, this Court comes to the conclusion that the prosecution has proved its case beyond reasonable doubt that the respondents made a preparation and attempt to smuggle the sandal woods in the name of roofing tiles and as per Foreign Trade (Development and Regulation) Act, 1992, EXIM Policy and Foreign Trade Policy 1997-98, the sandal woods are prohibited items for exporting. The learned trial Judge failed to consider the legal as well as factual position in this case and even though there is sufficient materials available to convict the respondents for the charged offences, he has not appreciated the evidence properly in right perspective to give effect to the Specific provisions of the Customs Act and this Court finds that the appellant has not proved its case and the respondents are not found guilty for the offence under Section 132 of Customs Act and all the respondents are acq ..... X X X X Extracts X X X X X X X X Extracts X X X X
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