9911796707
TMI Blog2024 (12) TMI 686X X X X Extracts X X X X X X X X Extracts X X X X ..... l Excise who was working as Senior Intelligence Officer with the DRI at the then time - Both the witnesses are Officers of DRI and therefore if their oral evidence is required to be believed it ought to have been duly corroborated and supported by evidence of independent panchas and witnesses who were present at the time of search and seizure. The learned Trial Court has returned a categorical finding that while prosecuting the case the prosecution tried its level best to find out the panchas and witnesses but they could not be traced and summons were not served upon them. This finding of the Trial Court is based upon the report filed by the prosecution stating the above reason for not examining the independent panchas and witnesses to the entire search and seizure operation in the present case - The learned Trial Court has held that prosecution has not provided any cogent evidence to prove that accused was occupying the subject premises solely. There are no statements of any of the neighbors or building residents recorded to prove this fact. That apart there were several other women/police woman present at the time of the raid, but statements of none of those present who participa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere Respondent No. 1 was residing was searched. Information received by DRI was that one Mr. Afzal Weldon of Weldon Construction having his residence at 3rd floor, Terrace building, Lady Jamshetji Road, Mahim, Mumbai 400 016 was indulging in smuggling of gold in India and storing gold at several places. Information that was received was that residence of Respondent No. 1 at Room No.3, First Floor, Arab Mazil Building, Sonawala Lane, Mahim, Mumbai 400 016 was one such place where the gold was kept by Mr. Afzal Weldon. Respondent No. 1 Ameenabi is the elder sister of Mr. Afzal Weldon. She was a resident of Hyderabad, but after the demise of her husband, she alongwith her children shifted to Mumbai. 5.2. Prosecution raided her residence alongwith panchas and carried out search and seizure operation. According to prosecution after she opened the main door, on seeing the DRI officers, she locked herself in the bedroom and refused to open the bedroom door despite repeated requests made by the DRI officers. The officers noticed that she had thrown some packets out of the bedroom window and some officers went and retrieved those packets which contained gold bars wrapped in newspaper. 5.3. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... seized gold was primary gold and import of gold without permission of the Reserve Bank of India was prohibited under Section 13 (1) of the Foreign Exchange Regulation Act, 1973 read with Notification issued under the Customs Act and prohibition imposed under Section 111 of the Customs Act. She would submit that import of gold without permission was also prohibited under the Imports (Control) Order 17/55, issued under Section 3 of the Imports and Exports (Control) Act, 1947 and most importantly under Section 8 (1) of The Gold (Control) Act, 1968 no person other than a licensed dealer was authorized to acquire, purchase, receive, possess, keep in custody or control any primary gold. She would submit that Respondent No. 1 failed to provide any documentary evidence to show authorized possession of the said gold bars. 6.2. She would vehemently submit that Respondent No. 1 transgressed the aforesaid statutory provisions and was found admittedly in unauthorized possession of unaccounted gold which she had knowledge and reason to believe that it was liable for confiscation under Section 111 of the Customs Act, 1962 and she is therefore liable for the offences punishable under Section 135 ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sional statement of the accused which has been subsequently retracted by her has not been proved as an incorrect finding. Hence, she would submit that impugned judgment of the Trial Court exonerating and acquitting the accused is required to be interfered with by this Court in its revisional jurisdiction. 7. PER CONTRA , Ms. Tidke learned APP appearing for Respondent No. 2 State has adopted the submissions made by Ms. Thakkar and after drawing my attention to the judgement of acquittal dated 14.10.1998 persuaded the Court to consider the evidence leading to acquittal of the accused. 8. I have perused the entire record of the case with the able assistance of the learned Advocate for Appellant and learned APP. Submissions made by them has received due consideration of the Court. 9. Though under the provision of Section 397 of the Code of Criminal Procedure, 1973, The Court cannot embark upon the exercise of re-appreciation of evidence, but in order to decide the challenge to the impugned judgment of acquittal dated 14.10.1998, to that extent case of prosecution and the evidence will have to be seen. Keeping this aspect in mind in the present case it is seen that the entire case of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s case beyond all reasonable doubts against the Respondent No. 1. The defence had argued that the confessional statement was recorded under threat given to accused to harm her minor son. That apart, the confessional statement was recorded in English language whereas the accused had knowledge of Urdu language only. The statement is seen to be signed by accused in Urdu. PW-2 has drafted the handwritten statement in English language and claims to have translated it in Hindi language to Respondent No. 1. If such was the search and seizure operation, then evidence of independent witnesses and panchas was utmost necessary otherwise the action of the DRI Officers becomes circumspect. Resting the prosecution case only on the basis of confessional statement and the twin depositions of prosecution Officers undoubtedly has fallen short of proving the prosecution case and guilt of Respondent No. 1 beyond all reasonable doubts. All these questions are clearly answered by the learned Trial Court in paragraph No. 18 (iii) and (iv) of the judgement in favour of Respondent No. 1. For reference the said findings are reproduced below:- 18) (i) XXX (ii) XXX (iii) It would thus be seen that there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
