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TMI Blog1991 (4) TMI 128X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of actual landing of the goods. On 5-2-1971 at about 3 a.m. upon information having been received that the goods were landed at Kalamb and were being loaded in a truck, the raiding party proceeded to Kalamb. While approaching Kalamb, they saw a truck standing on the road with its lights on. They saw one person standing near the truck and another sitting in the driver's cabin. The person who was standing outside escaped and according to the prosecution, the person sitting inside driver's cabin was present accused No. 1. The raiding party took charge of the truck which was loaded with packages covered with gunny cloth and packed and proceeded to the Customs House, Vasai. As they proceeded in the direction of Vasai while the truck was being driven by one of the officials, they saw an Ambassador Car coming from opposite direction near Satpala. The time was about 3.30 a.m. The officers stopped that Car and interrogated the persons who were sitting in that Car. Those persons were accused Nos. 2 to 5. At that place itself, panchas were called and the truck as well as accused Nos. 1 to 5 were shown to them. Thereafter the truck was taken to the Vasai Customs House along with the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r in discarding the statements of the accused recorded under Section 108 of the Customs Act even though the accused purported to retract the statements as the evidence of the concerned officers showed that they were voluntary statements made by the respective accused. She argued that having regard to the nature of the offences committed and the activities in which the accused were found indulging, it would be difficult to expect independent evidence to be available. Moreover, according to her, the evidence given by the Customs Officers who have been examined viz., Mugave P.W. 1, Nagarkar P.W. 2 and the supporting witness P.W. 3, could be believed and their evidence provided corroboration to the statements made by the accused so that they could be safely relied upon. 7. The learned Advocates representing the respective accused on the other hand submitted that the evidence of the Customs Officers was contradictory in nature and no reliance could be placed on that evidence. Likewise, no reliance could be placed upon the statements of the accused recorded under Sec. 108 of the Customs Act as the statements recorded were not voluntarily made and were also retracted by the accused. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... k at the definition of the expression "smuggling" in clause (39) of Section 2 of the Act which means any act or omission which will render such goods liable to confiscation under Section 111. The definition of the expression "goods" contained in clause (22) of Section 2 of the Act is an inclusive definition and includes any kind of moveable property amongst other. The impact of these definitions is that any goods would not accord to the definition of being smuggled goods unless there is a reasonable belief that the goods are either liable for duty or their import into India or dealing with such goods is prohibited by the law. The character of the goods being prohibited goods or smuggled goods or dutiable goods thus is foundation for attracting penal provision of the Customs Act as well as Imports and Exports (Control) Act. When the prosecution is launched on the basis of the complaint, it must be shown by the prosecution in the first instance that the seized goods were liable to confiscation and that under such reasonable belief they were seized. The .onus will shift only thereafter to the accused under Section 123 of the Customs Act to show to the contrary. Moreover, Section 123 w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te the statements made in the complaint and take advantage thereof for the simple reason that the complaint was lodged nearly about 5 years after the incident under the signature of S.C. Chaudhary, Assistant Collector of Customs and Central Excise, Vasai. The said officer' has not been examined by the prosecution to prove the contents of the complaint. The prosecution endeavored to prove the signature of Mr. Chaudhary by examining Chandran Bunkar, Assistant Collector of Customs and Central Excise, P.W. 5. His evidence does not improve the matter and fact remains that the contents of the complaint have not been proved. There is nothing in the evidence of Mugave himself from which the contents of the complaint about the mention of the reasonable belief stand proved. In the sanction it is not asserted that Mugave had acted after he had reason to believe that an offence was about to be committed in respect of goods seized. Turning next to the panchanama of the seizure, the contents of the panchanama are not proved because the pancha Nicholas P.W. 6 did not support the prosecution. He was declared hostile and was cross-examined on behalf of the complainant. During his cross-examination, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ces. When the loaded truck was taken charge of by the Customs Officers, none of the accused Nos. 2 to 5 was present. Hence they could not be said to be in possession of the goods that were ultimately seized from the truck. They could, therefore, be roped in only by the process of proving that they had either formed a conspiracy for committing the offence with respect to the goods and loading of the goods in the truck was a part of their conspiracy so that they could be held constructively in possession of the said goods or for having abetted some one in smuggling and loading the goods in the truck for the purposes of further transportation. There is absolutely no evidence to establish these ingredients. It was submitted by the learned Prosecutor that even if in the charge no section of Indian Penal Code has been mentioned, that could be treated merely an irregularity and should not vitiate the trial. Assuming, therefore, for the sake of argument that section with reference to its number may .not be mentioned in the charge yet the ingredients of the appropriate section constituting either conspiracy or abetment should find place in the charge so that the accused could be expected to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ained to accused No. 2 by Dube P.W. 3. However, on going through the statement, the language does not appear to be the language coming from a lay-man, but which is more familiar to the officers. For instance, in the statement of Akhtar Hussain Rehaman Moson, accused No. 1, it is found stated by him that "at Satpala the Car MR 8140 occupied by Ziauddin, Shaffi, Anna Patil and Gavari came, the officers promptly stopped that car....." The word 'promptly' relating to the reaction of the officer was unnatural to have come forward from this accused. Likewise, the statements at the top originally stated that they were being recorded before Mugave. That part was struck out by Nagarkar who came to Vasai from Bombay at about 12.30 p.m. and after he was briefed by Mugave, proceeded to serve the summonses and record the statements of the accused. The evidence of Nagarkar P.W. 2 shows that he had proceeded to record the statements immediately after serving the summonses under Section 108 without giving sufficient time to the accused to reflect. These circumstances go to show that absolute reliance cannot be placed on the statements to hold the accused guilty on the basis of their confession con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t an offence was going to be committed and had happened to seize the truck and bring it to the Customs House, it was his duty to see the goods after unpacking them and ascertain as to whether they were goods of the type which were liable to confiscation and, therefore, any offence was in fact committed in respect thereof and to have completed at least the panchanama of the seizure. Apart from the above infirmity, the learned Advocates for the accused have pointed out to us contradictions on several points arising in the evidence of Mugave P.W. 1 and Kanade P.W. 4 who was another Customs Officer in the raiding party. These contradictions are on the point of lights of the truck being on when it was on the shore, about lights of the Customs' Car being switched off while traveling, two gun shots allegedly fired at that time, presence of accused No. 1 in the cabin of the truck, about the car of the Customs Officers being ahead or behind the truck on their way to Satpala and the road being wide enough to allow two cars to pass and few other minor points. These contradictions would not have assumed much significance had the evidence of Mugave been otherwise satisfactory. 16. Considering ..... X X X X Extracts X X X X X X X X Extracts X X X X
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