9911796707
TMI Blog1990 (11) TMI 154X X X X Extracts X X X X X X X X Extracts X X X X ..... ch 1977, the Respondents along with accused No.1 Bhatia (who has been absconding since the date of the offence) attempted to export out of India, 17 reels of a feature Film "Geeta Mera Naam" valued at Rs. 13,000/- without an export licence and thereby committed breach of Export (Control) Order. They were also concerned in a fraudulent evasion of the prohibition imposed under the Imports and Exports (Control) Act which is also punishable under Section 135(i)(ii) of the Customs Act. The prosecution case has been stated in detail by the learned Additional Chief Metropolitan Magistrate in his judgment and it is not necessary to report the same. It could be briefly stated thus : On the date in question, Customs Officer Shri Reddy noticed P.W. 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant urged that the learned Magistrate did not approach the evidence properly and that had led to the acquittal as a result of which there has been a miscarriage of justice. Short point, therefore, arises is whether the order of acquittal calls for interference in the appeal. 4. It has to be noted that this is an appeal against the order of acquittal and normally this Court does not interfere with the order of acquittal passed in an appeal unless it is found that the judgment is perverse and no court could have taken the view which the trial Magistrate has taken. 5. In this case what is not disputed is the recovery of the suitcase containing 17 reels of the film "Geeta Mera Naam" and does not appear to be a dispute that it is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nde's evidence Itself would require support and the statements recorded by the Customs Officers cannot stand on their own because they were retracted by the makers. It is not necessary to state that the retracted statements themselves require corroboration before they are acted upon. Not much, therefore, would turn upon the evidence of Merchande. The prosecution case so far as accused No. 4 was concerned was that he told Merchande to load it and on that point, as stated earlier, there is a confessional statement of accused No. 4 which has been retracted and the evidence of Merchande, therefore, on that point cannot be said to have been satisfactorily established. The suitcase was collected from the Left Luggage Counter with a tag and that e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... apable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the court considers unreasonable." It was argued that he is in Dubai and to call him all the way from Dubai to give evidence would entail a delay and/or expense which under the circumstances of the case would be unnecessary. The learned Magistrate has also criticised the prosecution for not examining Abdul Aziz and keeping him in back from the Court and asking the Court to rely upon his statement recorded by the customs authorities. In fact accused No. 4 pointed out by Finger this Abdul Aziz in whose name the baggage was checked in and he was also of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in. Therefore, it became extremely difficult to see how the prosecution could dispense with the evidence of Abdul Aziz. In the circumstances, the prosecution could not have taken resort to the provisions of Section 138B. Probably the case with regard to Raju might be slightly different, but his evidence was not that material in the circumstances of this case. 10. The learned Counsel for the appellant submitted that the approach of the learned Magistrate was not in accordance with law. I am unable to see where the learned Magistrate has gone wrong. He has dealt with the direct evidence. He has also dealt with the statements recorded by the Customs authorities of accused Nos. 2,3 and 4. He was rightly of the view that before they are acted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refer to this evidence and deal with it was not correct. It is not that he was not aware of this piece of evidence. In para 13 of his judgment at the end, the learned Magistrate has made a reference to it. It is true that while dealing with the evidence, he says that the only evidence against these two persons is the statements made by them to the Customs authorities. However, I do not think that this has affected the ultimate conclusion reached by the learned Magistrate. In this connection, a decision of the Supreme Court in the case of Hem Raj Devial v. The State of Ajmer reported in 1954 Cri L.J. page 1313 was relied upon. The observations of the Supreme Court to the following effect were refered to :- "The contention that a confession ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
