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TMI Blog1984 (6) TMI 56X X X X Extracts X X X X X X X X Extracts X X X X ..... e (P.W. 1} then stationed at Cuttack, visited Baripada on November 16,1972 and seized as per Ext. 1, from the premises of Sital Prasad Ghosh (P.W. 2) brother-in-law of the respondent, a Datsun car of Foreign make, (M.O. No. 1) bearing registration plate No. DLK 7813, which, in the course of enquiry, was found to be a number assigned to a Buick car of foreign make which had been left by the driver of the respondent as the engine got trouble on its way from Bangalore to Calcutta and a written statement (Ext. 2) had been made by P.W. 2 who had handed it over to P.Ws. 1 and 4 stating that the driver of the respondent had left M. 0. 1 with him. P.W. 2 had approached the respondent in Calcutta to bring back the vehicle and the latter had assured that he would take steps for it. The respondent had made a confessional statement (Ext. 4) before P.W. 3 on November 27,1972 while P.W. 3 was the Inspector of Customs and Central Excise, Preventive and Intelligence Branch, Customs House, Calcutta, admitting to be in possession of the car in question. In the course of enquiry, Sanjeev Ghosh the absconding co-accused person, appeared before P.W. 4 on November, 1972 and submitted an application clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order of acquittal does not suffer from illegality, manifest error or perversity, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal. Even if it is possible to take a different view, there should be no reversion of the order of acquittal if the view taken by the acquitting Court is reasonably possible. 7. Under Section 135 (1) (b) of the Act, if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 11 lof the Act, his act becomes culpable. In the instant case, the charge against the respondent was that he had been dealing with a foreign made Datsun car and was in possession of the same without any authority, knowing the same to be liable to confiscation under Section 111 of the Act. An accused person must have actual control over it. Keeping or possession need not be as owner or purchaser (see State of Maharashtra v. Natwarlal Damodardas Soni -AIR 1980 S.C. 593. The prosecution has however, to estab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the car (M.O. 1) in his premises telling that the car belonged to the respondent. Having said so, he again gave a goby to this statement and gave out that the driver did not tell him that the car belonged to the respondent. In any view of the matter, when a witness testifies as to the information having been given by him to another and the latter is not examined, the testimony of the witness is not admissible being hearsay. In this connection, reference may be made to the observation of the Supreme Court in (Bhugdomal Gangaram and others etc. v. State of Gujarat, AIR 1983 S.C. 906). The driver of the Vehicle was the best person to say as to how and under what circumstances he had left the vehicle with P.W. 2. There was no evidence that at any stage during the enquiry by the Customs Officers, a statement of the driver had been taken. He had not been examined for the prosecution at the trial. P.W. 2 had testified that the respondent had told him when he was approached by him that he would ask the driver to get back the car as quickly as possible. This would not mean that the respondent was the owner or had acquired the car or was in possession thereof. It could be that he had underta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial court's finding that the statement had been made voluntarily. 12. As has been observed by the appellate Court, in order that a statement could amount to a confession, it must in terms, admit the offence or substantially all the facts which constitute an offence and an admission of a gravely incriminating character would not, by itself, amount to a confession. (see Pakala Narayana Swamy v. Emperor, AIR 1939 P.C. 47). 13. In Ext. 4, the respondent had stated that he had got the car in question from Devraj of Delhi in exchange of a 'Toyata Car which had been acquired by him from Sri Ramen Das who had purchased it from the State Trading Corporation of Calcutta and that while his (respondent's) driver was coming towards Calcutta, the car developed mechanical defects and was kept at Baripada with his brother-in-law'(P.W. 2). As earlier indicated, there was no evidence from the side of the prosecution that the respondent had acquired this car. It would appear from the evidence of P.W. 4 that during the enquiry by the Customs authorities, the absconding accused Sanjeev Ghosh claimed the car as belonging to him and had produced Ext. 3, the registration book, which, on verificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at it could not be said from the evidence that the respondent had the requisite knowledge or that he had reason to believe that the car (M.O. 1) was liable to confiscation. The learned Counsel of the respondent has invited my attention to the observation made by the Delhi High Court in Shantilal Mehta v. Union of India and others 1983 E.L.T. 1715 (S.C.), to the effect that the reasonable belief must be such as any reasonable man in the circumstances would entertain about the existence or non-existence of a thing. The reasonable belief can be entertained either on the basis of external indicia or on the basis of some internal information that the goods has been illegally imported into India in contravention of prohibition imposed and reasonable belief cannot be based on suspicion or speculation. The view taken by the learned Sessions Judge that the respondent had no knowledge or reason to believe that the car was liable to confiscation cannot be said to be unreasonable calling for interference by this court in appeal against acquittal. 17. The circumstances placed before the Trial Court to which reference has been made by the trial and appellate courts may give rise to grave susp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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