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TMI Blog2024 (6) TMI 315X X X X Extracts X X X X X X X X Extracts X X X X ..... -1, it was stated that the white powder they brought was Dexamethasone and despite such declaration the prosecution was initiated. Ext. P17 is the order in the adjudication proceedings in the matter. The defence set up by the respondents before the Adjudicating Officer (Additional Commissioner of Customs) has been recited in detail in Ext. P17. The respondents have no case that any contention beyond what has been recited in Ext. P17 were raised before the Adjudicating Officer. In that also no such contention was raised. In the light of the said evidence and circumstances, the assertion by DW-1 first time before the court that he declared the article to be Dexamethasone cannot be believed - the prosecution proved beyond doubt that the respondents did not declare the contents of their baggage and that was with a view to evade payment of duty on the article they imported, which is Dexamethasone. They thereby had committed the offence punishable under Section 135 (1) (ii) of the Customs Act. Hence, on reversing the findings of the trial court, the respondents are convicted of the said offence. The article imported by the respondents was ordered to be confiscated as per Ext. P17 by givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminating circumstances appeared against them in evidence. They maintained that there was no suppression, misinformation or attempt to evade duty. The 1st respondent gave evidence as DW-1. The trial court, after considering the evidence on record, found the respondents not guilty. It was held that the evidence of PW-1, the detecting officer, was insufficient for a conviction, inasmuch as there was total lack of independent corroboration. The delay in preparing the mahazar and the incongruity arose on account of the failure to seize the articles soon after noticing the non-declaration were the other reasons to discard the evidence of the prosecution. Also, Exts. P7 and P8, the statements of respondents recorded under Section 108 of the Customs Act were found to be incomplete and unreliable. 5. Heard the learned Special Public Prosecutor for the appellant and the learned counsel for the respondents. 6. The allegations forming the basis for the charge are that the respondents brought 27.5 Kgs. of Dexamethasone, enclosed in their baggage and they went through Green Channel without making a declaration before the customs authorities with a view to evade payment of customs duty. In ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... decisions of the Apex Court in Bannareddy and others v. State of Karnataka and others [(2018) 5 SCC 790] and Mallappa v. State of Karnataka [(2024) SCC OnLine SC 130] are placed reliance on. 10. The rule governing powers of an appellate court while dealing with an appeal against acquittal was laid down by the Apex Court in a slew of decisions. The Apex Court in Chandrappa and others v. State of Karnataka [(2007) 4 SCC 415] enunciated the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal: (i) an appellate court has the power to review, re-appreciate and reconsider; (ii) an appellate court may reach its own conclusion, both on questions of fact and of law; (iii) an appellate court shall be slow in coming to its own conclusion; (iv) an appellate court must bear in mind that in case of acquittal, there is double presumption in favour of the accused; and (v) if two reasonable conclusions are possible, the appellate court should not disturb the finding of acquittal recorded by the trial court. 11. In Shyam Babu v. State of U.P. [(2012) 8 SCC 651] the Apex Court held that it would not be possibl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity of a contrary view shall not justify the reversal of acquittal; (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts; (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. The evidence in this case shall be appreciated bearing in mind the aforesaid principles of law. 14. PW-1 deposed categorically that both the respondents passed through Green Channel and just before the exit gate, they were restrained and questioned. Three cartons containing white powder were found in the baggage of the 1st respondent and two similar cartons in the baggage of the 2nd respondent. The version of PW-1 is that respondents claimed the said article to be OMO stain remover powder. The cartons had such a label also. On suspicion the baggage and articles were kept for detailed examination. The respondents were therefore asked to come by 1.00 p.m. On the preliminary estimation that the white powder in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... articles in the possession of the respondents was Dexamethasone and it was seized on preparing Ext. P1 mahazar stands admitted. In the customs gate pass, possession of such materials with the respondents was not declared. The respondents did not mention in the pass that the article they brought was Dexamethasone. Even in their retraction statements they did not state that fact. In view of those admissions and proven circumstances the delay in preparing Ext. P1 mahazar and seizing the article immediately on finding the articles in their baggage, cannot have any adverse effect in the case of the prosecution. 18. The success of the prosecution depends still upon the question whether or not the respondents declared at the customs counter that the product with them was Dexamethasone. Section 77 of the Customs Act obliges every owner of a baggage to make a declaration of its contents for the purpose of clearing it. Incidentally, it is submitted by the learned counsel for the respondents that Section 77 of the Customs Act does not attract in the case of baggage, but only posts and couriers. I am unable to agree with that submission. A reading of Section 77 in the light of the headings of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d evidence and circumstances, the assertion by DW-1 first time before the court that he declared the article to be Dexamethasone cannot be believed. When the said version is against the oral testimony of PW-1, which goes in tandem to Ext. P1 and also other circumstances emerged from the evidence, the irresistible conclusion is that the respondents tried to take away the articles in question without declaring before the customs authorities. I have no hesitation to hold that no other view is possible in the light of the evidence on record. When the evidence on record eloquently establishes that fact, it is obligatory, in the light of the principles laid down in the aforesaid decisions, on this Court to interfere with the view taken by the trial court. I hold that the prosecution proved beyond doubt that the respondents did not declare the contents of their baggage and that was with a view to evade payment of duty on the article they imported, which is Dexamethasone. They thereby had committed the offence punishable under Section 135 (1) (ii) of the Customs Act. Hence, on reversing the findings of the trial court, the respondents are convicted of the said offence. 22. The article imp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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