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TMI Blog1985 (6) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... urt, 5th accused expired. Accused 4 and 9 are absconding and the trial as against them has been split up and included in the register of long pending cases. Therefore, in this appeal, I am concerned only regarding the case against accused 2, 3 and 6 to 8. 2. The allegations as disclosed from the complaint are briefly as follows : On 21st March, 1974, the Customs Preventive Staff at Kasaragod was having patrol duty in the night, on getting information that silver was being attempted to be exported illegally out of India. The Preventive Staff was patrolling in a hired fishing boat near the Nileswar coast. While they were about 4 kilometers away from the coast, at about 2 a.m. in the night between 21 and 22nd March, 1974 they saw two mechanished boats docked side by side within the territorial waters of India. They were found transacting some business. On seeing the patrol party, one of the boats moved towards the outer sea and the other towards the coast. The boat that moved towards the outer sea was an Arab vessel and the prosecution case is that it was there for the purpose of collecting silver taken in the other boat. 3. The preventive staff chased the Boat which was moving to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed and they were found by the Magistrate also. 6. Though the prosecution case is that the 1st accused was the owner of the silver and the entire illegal transaction as arranged for him and at his instance, his involvement and the evidence relating to it need not be considered since the case against him has abated with his death. That is the case with the 5th accused also. Since accused 4 and 9 are absconding, we are concerned in this appeal only with the following points. (a) whether the 2nd accused is involved in the offence by arranging transport of the silver in his boat and by making further arrangements for transport into the Arab vessel? (b) Whether the 8th accused is involved in the crime by arranging crew for the boat. (c) Whether accused 3, 6 and 7 are involved in the offence by acting as crew of the boat "Ayisha" and knowingly transporting the illicit silver for export? and (d) Is the order passed by the Magistrate purporting to be under Section 452 of the Code for release of the jeep sustainable? 7. These points are noted not for the purpose of dealing with them in the order in which they are arrayed above. I shall first deal with the general attack against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... operty was made in the judgment suo moto without any motion for that purpose made in Court from any source. So also the order was made with full consciousness of the confiscation. The impugned portion of the judgment containing the order for disposal of the jeep reads thus : "Coming to jeep number MHY 3288 it is to be noted that there is no evidence in the case to show that it was concerned in any way in the clandestine (transaction). It was seized from the workshop of PW4. It has got registration. It has been confiscated by the Customs Authorities. As there is nothing to connect it with any illegal transaction I think the confiscation is illegal. This Court is competent to order regarding disposal of the properties involved in the case under Section 452 of the Cr. P.C. even after the same has been confiscated by the Customs authorities. In the circumstances the jeep number MHY 3288 will be given to its registered owner or to the person who proved to be entitled to be in possession." 11. Involvement of the jeep was a matter covered by statements recorded under Section 108 of the Act produced in the case including Exts. P16 and P17. When that matter was not argued before him and w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 517 of the repealed Code of 1898 is a general provision concerning disposal of property. Section 7(1) of the Essential Commodities Act is the provision made with reference to that Act and therefore evidently in regard to prosecution under the Act it is the said provision that should govern in the matter of forfeiture. To import the provision in Section 452 despite Section 7(l)(b) would not be justified as the provision in Section 7(l)(b) would then be rendered a superfluity. Even otherwise it is a general rule of construction of statutes that a special provision will override the general provision and the provision in special enactment's must have overriding application unless it be that the circumstances point to the need for application of the provisions of the general enactment in the particular case." 13. The provision for disposal of the jeep in the judgment is, therefore, out of place, uncalled for, unwarranted and illegal. It requires to be set aside and I do so. If so, the order for confiscation will stand. 14. Smuggling is an activity which affects the nation as a whole and jeopardises the economy of the country at the expense of enriching those who are engaged in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sumption that these statements were retracted and the record evidencing this fact are missing in the case records. If so he ought to have enquired into the matter and traced out the records. He over-looked the fact that even if they were retracted, belated retractions will not be of much value because it could only be taken as the result of afterthought or advice. In fact there was no retraction and if at all there was retraction it was only when questioned under Section 313 of the Code. 16. Accused 3, 6 and 7 were among the crew in the boat "Ayisha" which carried the illicit silver worth lakhs of rupees for being carried to the Arab vessels and this fact was not seriously disputed also. PW3 saw this boat and the Arab vessel docked side by side in the sea and some attempts being made to transport something. From his evidence it is further seen that on seeing them the Arab vessel moved fast into the outer sea and the boat "Ayisha" to the coast. When they chased "Ayisha", it moved faster. Requests for stopping the vessel after revealing their identity only resulted in the boat "Ayisha" increasing the speed in an attempt to escape. First rounds of firing also did not help in getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... given by PWs 4 and 6. PWs 1 and 3 have not spoken to these statements and PWs 4 and 6 disowned the contents in the box, but they were not declared hostile and cross-examined. 18. PWs 1 and 3 have no direct knowledge regarding the complicity of the 8th accused also. The only evidence against him are Exts. P2, P5, P6 and P7. Exts. P2, P5 and P6 are only statements of co-accused which cannot be taken as substantive evidence. They could be used only for corroborating substantive evidence, if any. Barring these items, there is only Ext. P7, the statement given by the 8th accused himself under Section 108 of the Act. Without any other evidence, it may be unsafe to rest conviction solely on Ext. P7. The presumption under the Act also, therefore, cannot be availed of against the 8th accused. 19. Then remains only the question of accused 3, 6 and 7. As against them, there is ample evidence. I have already discussed the evidence of PW3 based on his direct knowledge. Even though PW1 has come to the scene only after the seizure, there is his evidence also supported by the mahazar and the evidence of PW2 who assayed the silver. Then there are Exts. P2, P5 and P6 statements of accused 3, 6 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Section 138A of the Act. Section 138A of the Act reads as follows :- "138A. Presumption of culpable mental state. - (1) In any prosecution for an offence under this Act which requires a culpable mental state on part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that he had no such mental state with respect to the Act charged as an offence in that prosecution. Explanation. - In this section, 'culpable mental state' includes intention, motive, knowledge of a fact and belief in, or reason to believe a fact. (2) For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability." For the purpose of any prosecution under the Act if a culpable mental state on the part of the accused is required, the section authorises the Court to draw the presumption regarding such existence. The burden of proof is cast on the accused to disprove the same. This is against the normal presumption available in a criminal case. But the Court is entitled to give the pro ..... X X X X Extracts X X X X X X X X Extracts X X X X
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