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TMI Blog1989 (11) TMI 43X X X X Extracts X X X X X X X X Extracts X X X X ..... -10-1985. 2. A complaint was filed by the Assistant Collector of Customs before the learned Metropolitan Magistrate against the Respondent-accused alleging that he has committed the offences mentioned above in respect of goods which he did not declare and which he had brought while coming to India. The case of the prosecution was that the Respondent arrived at Bombay International Air Port at Sahar, during the night intervening 14th -15th April, 1984 by Air India Flight. At the red channel in the Customs enclosure the Respondent declared goods on which duty was payable and his declaration was accepted. Duty was accordingly charged on the said goods. In the meantime, three packages and one roll of carpet were found lying in the baggage are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control) Act, was given by the Collector of Customs, Bombay, and the complaint was filed in the lower Court. 3. In support of the complaint, the prosecution examined V.N. Patil, Preventive Officer, and one C.V. Ephram, before the charge and closed its case. The Respondent appeared through his Lawyer and was heard. After considering the evidence produced before him, the learned Magistrate found that it was not disclosed by the evidence that there was any intention on the part of the Respondent to evade customs duty and import the goods and he was in no way concerned with the goods except that he had accompanied the cricket team as employee of the Sponsors and the goods were in fact consigned to Hemant Waingankar, the Cricket Control Board ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1) made enquiries with Hemant Waingankar about those packages since his name was appearing on them, but he stated that they did not belong to him. He also stated that they belonged to the Respondent. Thereupon the Respondent was interrogated and a panchanama was made. 5. Vivek Patil (P.W.I) the Preventive Officer stated in his examination-in-chief that when the Respondent was interrogated, he claimed the ownership of all the packages. However, in the gross-examination, he stated that the Respondent along with Hemant Waingankar was waiting near the counter No. 43 at the red channel. He explained that the purpose of going to red channel is to make declaration of dutiable goods. The Respondent in fact declared the goods in the suitcase whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Waingankar for disclaiming the goods. His cross-examination thus shows that the four packages were lying in the conveyor area and the Respondent had voluntarily accepted the goods. 6. C.D. Ephram (P.W. 2), Superintendent of Customs, stated in his evidence-in-chief that Hemant Waingankar and other members of the cricket team had disowned the packages but the Respondent had claimed them and they were seized under panchanama. He was the officer who recorded the statement of the Respondent under Section 108 of the Customs Act. In his cross-examination, he has also stated that two of the packages were lying near the counter and two were lying near the conveyor belt. These were bearing the name of Hemant Waingankar - Cricket Control Board of In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent therefore stated to P.W. 1 and P.W. 2 must be understood to mean that he had only accepted the position that part of the goods contained in the packages viz., carpets and blankets were belonging to him and all that he had done that was to offer to pay duty for the remaining goods so that Hemant Waingankar would be saved from any embarrassment as may be caused to him because the packages were bearing his name as the consignee. Having regard to this nature of evidence, in my opinion, the learned Magistrate was fully justified in holding that the circumstances did not show that there was any intention on the part of the Respondent to evade customs duty and import the goods. The evidence does not show that the Respondent had attempted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt did not disclose presence of any of these elements. Even after going through the complaint and the sanction, I find it difficult to find any material to disclose an offence under Section 5 of the Imports and Exports (Control) Act, 1947. Merely reference to that provision has been made in paragraph 7 of the complaint without even as much placing on record the Import (Control) Order No. 17 of 1955 dated 7-12-1955 and no attempt has been made to show that the goods in question were covered by the said order. 10. Lastly, the evidence of the prosecution witnesses shows that the goods were not seized but only detained. There was therefore no basis for the prosecution to carry any reasonable belief that the goods were smuggled. For that rea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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