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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 ..... al 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 acquitted for the said offence. The appellant/Customs Department has proved its case beyond reasonable doubt for the offence punishable under Sections, 135(1)(a)(ii) r/w.135(A) of the Customs Act and therefore, they are convicted under Sections 135(1)(a)(ii) r/w.135(a) of the Customs Act. Therefore, the judgment of the learned trial Judge is liable to be set aside and accordingly, set aside, in this regard. Since it is a reversal judgment, before awarding sentence, the accus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 Additional Chief Judicial Magistrate in C.C.No.2 of 2003 and C.C.No.4 of 2004 dated 23.05.2008, the appellant filed present appeals. Since both the appeals are arising out of common O.R.No.2/98 and all the respondents are allegedly involved in the same offences, both the appeals have been taken together and common judgment is pronounced. 7. The learned counsel for the appellant/Customs would submit that the learned Additional Chief Judicial Magistrate failed to note that during the seizure proceedings, the respondent in Crl.A.No.59 of 2009 Alexander was not available and so, his name was not mentioned in Ex.P12 and even, there is no contradictions between the statements of Rahman Sait, 5th respondent in Crl.A.No. 58 of 2009 and Ex.P6 inventory Mahazar as observed by the learned Additional Chief Judicial Magistrate and that the sanction of prosecution against the respondents were duly obtained and mere non-examination of the sanct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 respondents, the said order was challenged by the appellant herein. The competent authority has passed an order in favour of the appellant and initially the Commissioner of Customs admitted the appeal and passed penalty; and the respondents taken appeal before the Appellate Tribunal and the Appellate Tribunal allowed the appeal filed by the respondents herein and set aside the penalty imposed by the Commissioner of Customs. Challenging the said order, the appellant herein preferred CMA.No. 93 of 2009 before this Court and this Court set aside the order passed by the Appellate Tribunal and restored the order passed by the Commissioner of Customs. The respondents have not challenged the order passed by this Court in CMA.No.93 of 2009 and therefore, that order is final, and now, the respondents cannot say that the appellant has not proved its case beyond reasonable doubt and also they have retracted the statements. Therefore, the le ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 substitute its unfair reason and reverse the judgment of acquittal. The learned counsel for the respondents placed reliance on the following judgments of this Court and the Hon'ble Apex Court:- (i) 2013 SCC Online Mad 771 : (2014) 300 ELT 342 (Commissioner of Customs (Imports) ..vs.. Sainul Abideen Neelam and another); (ii) (1996) 9 Supreme Court Cases 225 (Ramesh Babulal Doshi ..vs.. State of Gujarat); (iii) 2006 (197) ELT 44 (Tri. - Chennai) (S.Janarthanan ..vs.. Commissioner of Customs, Chennai); and (iv) (2010) 13 Supreme Court Cases 657 (Sunil Kumar Sambhudayal Gupta (DR.) and others ..vs.. State of Maharashtra). 11. Heard the rival submissions made on both sides and perused the materials available records. 12. The case of appellant/prosecution is that on 10.03.1998, the officers of the Customs, Preventive Division, Tuticorin, searched the godown at No.111, Ettayapuram Road, Tuticorin and found rows of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rl.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 appellant Department that Janarthanam @ Janar (R3) took export business under the panel Janar Exports and his relative Sri.Mohan introduced Mydeen (R2) of Chennai to him and the second respondent Mydeen asked the third respondent Janarthanam @ Janar to help him in exporting the goods, such as sandal woods through Tuticorin Port and on 02.03.1998, the second respondent Mydeen contacted him over phone and told him that he got one order for export of Mangalore Tiles to Singapore from one Nathan (R5) and requested for arranging a godown. On 06.03.1998, Mydeen (R2) sent documents by fax and asked Janarthanam @ Janar (R3) to file the shipping bill as roofing tiles. On 07.03.1998, Janarthanam @ Janar (R3) handed over the documents to Ramesh (R4) for filing shipping bill, who also filed the same through C F Agent M/s.Ukkirapandian pillai Sons. On 09.03.1998, Rahman Sait @ Nathan (R5) came to the office of Janarthanam @ Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 recovered Mangalore roofing tiles and also the sandal woods through Mahazars and he has also signed in the Mahazars. Therefore, searching of godown at No.111, Ettayapuram Road, Tuticorin on 10.03.1998 was established. 15. One Sankaralingam was examined as PW.4, who had clearly deposed that when he was working as Customs Inspector during 1998 in Tuticorin, he received the information that in Tuticorin, Ettayapuram Road, some of them hided the sandal woods and he went to the place and one of the respondents Harigangaram has given statement, which is marked as Ex.P8 and one Sundarrajan was examined as PW.5. He has also stated that they searched the company at Chennai and nothing was recovered during the search. PW.6, one Mayilerumperumal was examined and he has spoken about the photographs taken on 17.11.2007 and the CD, which were marked as M.Os.1 and 2 and one Balraj was examined as PW.7 and he has spoken that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 followed by this Court, whereas in this case, it is a peculiar nature that the persons, who wanted to export the sandal woods, are not ready to declare the goods and pay the customs' duty and thereby, violated the EXIM Policy and Foreign Trade (Development and Regulation) Act,1992 and they attempted to smuggle the goods under the guise of roofing tiles and contacted the persons from Chennai, and also contacted other persons in the way, but could not succeed, where all the respondents are involved in this case and the statements recorded from the respondents Exs.P3 to P6 have clearly established the involvement of the respondents in this case. Though the main defence taken by the respondents that the statements given by the respondents were subsequently retracted, but in this case, though they have retracted, but the fact remains that the prosecution has proved its case beyond reasonable doubt that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 monitory consideration to do that. Therefore, R3 was also involved in this case. This Court already found in CMA that the Commissioner found that inspite of having knowledge of the sandal woods being part of the consignment of roofing tiles, they did not intimate the same to the Customs Authorities. Therefore, though the respondents have stated that no ownership is established and the goods also not produced before the Court, but the fact remains that all the respondents, in one way or other, knowing fully well that the sandal woods were kept in the godown and making attempt to smuggle the goods to Singapore in the name of roofing tiles, but they have not informed the same to the Customs officials at the moment when they came to know that the sandal woods are being part of the roofing tiles. 21. Therefore, in the absence of the statements given by the respondents, obtained by the customs officials ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iated 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 acquitted for the said offence. The appellant/Customs Department has proved its case beyond reasonable doubt for the offence punishable under Sections, 135(1)(a)(ii) r/w.135(A) of the Customs Act and therefore, they are convicted under Sections 135(1)(a)(ii) r/w.135(a) of the Customs Act. Therefore, the judgment of the learned trial Judge is liable to be set aside and accordingly, set aside, in this regard. 23. Since it is a reversal judgment, before awarding sentence, the accused have to be given opportunity for being asking the question of sentence. 24. In the result, the Criminal Appeal stands allowed in part and the acquittal of respondents in both the appeals for the charges under Section 132 are confirmed and for the charges under Sections, 135(1)(a)(ii) r/w.135(a) of the Customs Act, by the learned Additional Chief Judicial Magistrate, Madurai, in C.C.Nos.2 of 2003 and 4 of 2004 vid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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