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TMI Blog1990 (8) TMI 156X X X X Extracts X X X X X X X X Extracts X X X X ..... trol Act and directed that the substantive sentences to run concurrently. 2. Being aggrieved by the judgment and order of conviction and sentence passed by the Additional Chief Metropolitan Magistrate, Respondent No. 1 preferred an appeal being Criminal Appeal No. 43 of 1980. The learned Additional Sessions Judge, Greater Bombay, by his judgment and order dated 22nd January, 1982 allowed the appeal, set aside the conviction and sentence and acquitted Respondent No. 1 of the various offences with which he was charged and convicted by the trial Court. This appeal is directed against the acquittal of Respondent No. 1. 3. The prosecution case, in brief, is as follows :- Respondent No. 1 was working as Customs Officer. On 17th October, 1977 the ship M.V. Akbar which had arrived from Persian Gulf port was berthed at 18 Indira Dock. In the evening Respondent No. 1 went to the ship in plain clothes. Respondent No. 1 came down from the ship and was proceeding towards Mole station and was carrying an Air India Bag. Bapu Laxman (PW 1), a Customs Jamadar, accosted Respondent No. 1 on suspicion and stopped him at some distance. On enquiry Respondent No 1 told the Jamadar that he was carry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arch of one Ibrahim who was suspected to indulge in smuggling of opium. He denied that his person was searched and six gold biscuits were recovered from him and the other articles were found in his hand bag. He denied that the panchanama was made. According to Respondent No. 1 Bapu Laxman and Shri Alimchandani were not on good terms with him. At the instance of Alimchandani he was falsely involved in the case. He contended that his statement under Section 108 of the Customs Act was obtained under threat and coercion and it was not a voluntary statement. He retracted all the confessional statements at Exhibits C, C1, C8 and C3 recorded under the Customs Act. In addition to the oral statements Respondent No. 1 filed a written statement wherein he contended that the search was not proved and no list of articles was prepared as required by law. He also made a grievance that the prosecution did not examine panch witnesses to prove seizure of gold bars and other articles from his possession. The prosecution also did not examine the Investigating Officer, Alimchandani who was on inimical terms with the Respondent No. 1. 5. Relying on the evidence of the Customs Officer and the statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d seizure of the gold and other articles from possession of the Respondent No. 1. The learned Judge also found that the conviction under Section 136(1) of the Customs Act was not legal and proper in view of the acquittal of original accused No. 2. The learned Judge has not considered and discussed the other piece of evidence which was relied upon by the trial Court to convict the Respondent No. 1 i.e. the confessional statements of the Respondent No. 1 recorded under Section 108, as, in his view, it was not necessary because the prosecution failed to prove that the contraband gold was seized from Respondent No. 1. 7. The learned Judge concluded that the conviction of Respondent No. 1 could not be sustained for want of sufficient reliable legal evidence and acquitted him. 8. The prosecution examined in all six Customs Officers and tendered two panchanamas, Exhibits A and 1 confessional statements of the respondent No. 1 at Exhibits C, C1, C2 and C3 and the Test report, Exhibit C4. 9. The first witness is - Bapu Laxman Lamkhade, Customs Jamadar. On the day of the incident he was on duty inside the Indira Dock where the ship M.V. Akbar had been berthed. At about 6.00 p.m. he acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Mr. Sharma, Customs Officer Mr. Bhide, Superintendent Mirji and Customs Jamadar Bapu brought Respondent No. 1 Ballan in the office. Respondent No. 1 was carrying Air India hand bag. When questioned by Mirji, Respondent No. 1 admitted that he was carrying gold on his person. The panchas were called. The hand bag was searched. It contained four cassettes, one film and one toffee tin of foreign origin and two diaries. Two more diaries were found in the pocket of the panch of Respondent No. 1. On search of the person of Respondent No. 1, one cloth pouch was found tied with the string around the waist. It contained six pieces of gold, each one was of 10 tolas with foreign markings. The pieces were in biscuit shape. The gold was valued at Rs. 45,334.00 at the market rate. The gold and other articles were seized under panchanama, Exhibit A. In the cross-examination he stated that the panchas were called at 8.30 p.m. and then corrected himself saying that they were called at 9.30 p.m. He also stated that the writing of the panchanama commenced at about 9.00 p.m. but after seeing the panchanama, Exhibit A, he deposed that the panchas were called at 9.30 p.m. and the panchanama was conclud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1975 there was an incident between him and Alimchandani and at that time Alimchandani abused and threatened him to see that his services are terminated. According to the accused, he was involved at the instance of Alimchandani. Both the courts below have rejected the defence contention that the customs officers involved the Respondent No. 1 at the instance of Alimchandani. In this context the learned Sessions Judge has stated :- "I am not inclined to hold that all the officers had given evidence at the instance of Alimchandani or that Alimchandani has falsely implicated the appellant in this incident, particularly as the appellant was a fellow officer." Non-examination of Alimchandani does not affect the prosecution case. 14. Thus there is consistent, cogent and convincing evidence of the Customs Officer (PW 2), (PW 3) and (PW 4) that the gold biscuits and other articles were found in the possession of Respondent No. 1. It is highly improbable that these officers would falsely involve Respondent No. 1 who was also a customs officer. They are competent witnesses and their evidence cannot be considered as that of the interested witnesses. There was no reason for all of them to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld that the prosecution has failed to prove the panchanama, Exh. A and excluded it from consideration of the case against Respondent No. 1. The prosecution came with an explanation that the panch witnesses were not traceable and therefore, their attendance could not be secured at the time of the trial. On 8-6-1979, Mahabaleshwarkar (PW 2) filed a report (which is at page 274 of the record of the case) that Shetty has left the job and in spite of the efforts he could not be traced. In the report it is mentioned that Thakkar had not given his residential address correctly and his employer was also unable to give his whereabouts. It is true that at the time of evidence Mahabaleshwarkar did not state in detail the efforts made by them to trace out the panch witnesses. Whatever it may be, the fact remains that both the panch witnesses were not examined to prove the panchanama, Exhibit A. I am unable to accept the submission of Mr. Ramamurthy that adverse inference should be drawn against the prosecution on account of non-examination of these witnesses. The entire procedure of search is not vitiated because the panchanama is not signed by both the panchas and there was no compliance of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... outside the docks. This belt he removed from his person which was tied around his waist under his pant. I agreed to oblige him and in fact he removed the said belt containing the gold bars from his person and tied around my waist and I helped him in opening my pant buttons. He assured me that for attending to his work he would give me some consideration in terms of cash after handing over the belt containing gold biscuits to him outside the gate. The arrangement was that he would meet me outside the Red gate, I. Dk. near the hotel which is opposite to the said gate. He told me that we should go together in a taxi to a place that will be decided by him as I have to hand over the gold biscuits to him and receive the money so that no one would witness it....... After the Khalasi had tied the said belt containing the gold biscuits I continued to remain with him for another 15 minutes. Neither Mr. Rathod nor myself met each other in each other's cabin while having drinks. I left the cabin while and came down the gangway where Mr. Rathod was standing alongwith the gangway officers. Mr. Khalasi also was ready to go outside into go shore. I was trying to move away from the shed towar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... answer form. P.W. 3 Mirji should have asked the Respondent No. 1 to write his own statement and it was not necessary to ask P.W. 6 Sharma to scribe the statement, Exhibit C. He also argued that the last two lines of the statement, Exhibit C, show that Respondent No. 1 was tired and exhausted and he was forced to sign the statement. It is true that the statement, Exh. C., is not in question and in answer form. No form for recording the statement under Section 108 of the Customs Act is prescribed. The law does not require that such a statement should be in the hand-writing of the person concerned. There is also no evidence to show that the Respondent No. 1 had expressed his desire to write the statement himself and the officers turned down the request. It is true that at the fag end of the statement it is mentioned that Respondent No. 1 sought permission to go to home as he was tired. This would not lead to an inference that Respondent No. 1 was harassed and was compelled to make a confessional statement. On the statement, Exhibit C, the Respondent No. 1 in his own hand-writing made an endorsement that he read the statement and understood the contents. He admitted that it was correc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e prosecution case. I, therefore, find that the retracted confessional statement is corroborated by the independant evidence and circumstances. The statement is genuine and true. 25. Mr. Ramamurthy contended that the co-accused Khalasi made an exculpatory statement before the Customs Officers. He has been acquitted. This circumstance is sufficient to discard the statement Exhibit C. I am unable to accept the contention. The exculpatory statement of accused No. 2 was of no use either to the prosecution or to the defence. Mr. Ramamurthy cited a decision in J.A. Naidu v. State of Maharashtra reported in AIR 1979 SC 1537. In that case accused Nos. 1 to 11s' conviction was recorded on the basis of ordinary chit (Exhibit 31) in which the Customs Officer held had noted the names of accused and the currency notes produced by them without drawing a panchanama or recording their confessional statements. The High Court affirmed the conviction relying on the evidence of Custom Officer Mr. Ganguli. Their Lordships of the Supreme Court observed that the document, Exhibit 31, which forms the cornerstone of the prosecution case, was a suspicious document. Mr. Ganguli, who was an experienced offi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the possession of the accused were of foreign origin. Mahabaleshwarkar says that he had taken all the six bars to the laboratory and they were tested. There is no good reason to disbelieve his evidence on this aspect. 29. Mr. Ramamurthy rightly urged that in any case Respondent No. 1 could not be convicted for offence under Section 136(1) of the Customs Act. Respondent No. 1 was charged with the offence under Section 136(1) of the Customs Act on the allegation that he entered into an agreement with original accused No. 2 to smuggle the said goods out of the dock. In view of the acquittal of accused No.2, Respondent No. 1 could not be convicted under Section 136(1) of the Act. Mr. Patwardhan fairly conceded this position. 30. Mr. Ramamurthy argued that the High Court should not interfere with the order of acquittal because the view taken by the learned Additional Sessions Judge was plausible or possible. The order of acquittal cannot be interfered on the ground that another view should have been taken. He relied on the decision of the Supreme Court in Ganesh Bhavan Patel and another v. State of Maharashtra (AIR 1979 SC 135) in which Their Lordships observed: "where two reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thrown away on the ground that panchanama, Exhibit A, is not proved as there is dependable evidence in the form of confessional statements of the Respondent No. 1, supported and corroborated by the evidence of the Customs Officers; and (v) The Prosecution has proved that Respondent No. 1 indulged in smuggling of the gold and other contraband articles and committed the alleged offences, except the offence one under Section 136(1) of the Customs Act. 33. In view of my aforesaid conclusions, the learned Sessions Judge's judgment of acquittal cannot be sustained. Having taken into consideration all above aspects, the learned Magistrate found that the case of the prosecution is proved against Respondent No. 1. The judgment and order of the Magistrate, except the finding of conviction under Section 136(1) of the Customs Act, must be upheld. 34. In the result, the appeal succeeds. The judgment and order dated 22-1-1982 of the learned Additional Sessions Judge, Greater Bombay, acquitting Respondent No. 1 except to the extent of conviction under Sec. 136(1) of the Customs Act are set aside. The order of acquittal of Respondent No. 1 under Section 136(1) of the Customs Act is maintain ..... X X X X Extracts X X X X X X X X Extracts X X X X
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