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TMI Blog1992 (5) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ere seized under a seizure list exhibit-I prepared in presence of the accused and some witnesses. On the same date and on some other dates subsequent thereto, Rudy made certain statements giving out the names and addresses of the persons who had planned, financed and conspired in smuggling of contraband articles into India through the instrumentality of one Customs Officer called Khan. Rudy was placed under arrest under Section 104 of the Customs Act, 1962. 2.On 13th April, 1981, Mr. M. Prasad, Assistant Collector of Customs, attached to Calcutta Customs, made a complaint in writing before the learned Chief Metropolitan Magistrate, Calcutta, after obtaining sanction from the Collector against K.K. Vaghani alias Bala. Rodolfo T. Cardiente alias Rudy. N.W. Peter and the Preventive Officer of Calcutta Customs. A.H. Khan for prosecution on charges under Sections 135 (1)(b)(i) and 136(a) of the Customs Act, 1962, (hereinafter referred to as the Act) read with Section 120B of the Indian Penal Code setting out with some more details certain facts and circumstances under which the seizure of the articles took place and the accused Rudy was palced under arrest, as stated above. 3.The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation and possession of the articles. This part of the procecution case about search and recovery of the contraband articles as deposed by P.W. 1 has been fully corroborated by P.W.s. 2, 3, 6, 7 and 9 to 12...., all of whom were members of the rummaging party and this has not been effectively challenged during their cross-examination. The articles seized were entered in the seizure list, exhibit-1 and it was signed by P.W.s. 1, 13 and 14 and also by the accused who received a copy of the same. 5.As the articles seized were imported without valid import licence and none in the vessel could produce any document in support of the legal possession and in fact everybody disowned the property, the Customs Officers conducting search and seizure were in the reasonable belief that those were smuggled goods liable to confiscation under Section 111 of the Act. 6.In order to appreciate the case of the prosecution connecting the accused with the offence under the Act, it becomes necessary to look into the statements alleged to have been made by the accused on 29-9-1980 and on sub- sequent dates which have been tendered by the prosecution in evidence at the trial and have been marked exhibits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers is not be liable to be condemned. The ratio has been approved in the case of Vira Ibrahim (supra) in the way that on admission of an incriminating fact however grave is not a confession and as such not hit by Section 24 of the Evidence Act. In both the statements Exhibits 2 and 3, the accused disclosed how the 35 packets containing the smuggled goods were brought into the vessel within his knowledge at Hongkong, how the same were concealed undnerath the eggs and apples baskets in the store room of the vessel. While admitting that the accused agreed to carry the goods in consideration of some remuneration, the names of the persons to whom the goods were to be delivered at Calcutta through the instrumentality of one Customs Officer at Calcutta were also given out. Even if we leave aside the last part of the statements., the fact remains that the accused knowingly took possession of the smuggled goods wrapped up in 35 packets and carried the same in the vessel for consideration and these facts have been further strengthened by the subsequent search and recovery of the goods by the Customs Officers in the vessel. Incidentally, it would be important to note that P.W. 14, an employee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ervision of the Chief Steward. The witness is an employee of the shipping agents not connected with the Customs department. Furthermore in view of the admissions of the accused and the presumptive evidence in the light of the enabling provisions of the Act pointed out earlier, proof of exclusive and concious possession is not necessary as required in cases of charge in under Sections 411 or 412 of the Indian Penal Code. The statement of the accused during his examination under Section 313, Code of Criminal Procedure that he saw the seized articles for the first time in Court is belied by his signature in SL. 1. Prosecution case was further assailed for non-examination of the Master or Captain of the vessel. Non-examination of the Officers of the vessel is not considered fatal and it is doubtful if any such Officer if examined would speak out the truth. The testimony of P.W. 13, principal executive of the Shipping Agents, who all along sympathised with the accused is a pointer in that regard. The search and seizure was criticised on the ground that P.W. 13 did not notice any ice flake on the seized articles. This was not unnatural because P.W. 13 had been to the vessel towards the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der of acquittal, but for a time lag prosecution is in no way responsible. The long interval is not a good ground for non-interference particularly when in this case concerning is overwhelming and the order of acquittal is blatantly perverse (See AIR 1987 S.C. 1321). It would be important to note that in the criminal revision the accused himself filed an application to the effect that he wanted to plead guilty and prayed for separate trial in so far as he was concerned undoubtedly justice should be done to the defence but at the same time prosecution must not also be prejudiced by any perverse findings. 11.Thus having regard to the totality of evidence and in the light of all that has been discussed above and also the conduct of the accused throughout, the appeal is allowed and the order of acquittal impugned is set aside. The accused respondent is found guilty of the offence punishable under Section 135(1) (i) of the Customs Act, 1962 and is sentenced to rigorous imprisonment for two years and also to pay a fine of Rs. 5,000/- in default to suffer rigorous imprisonment for six months more. The accused is directed to surrender to the Court forthwith to serve the sentence. Crimina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the ingredients of the offence have been disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. The principles laid down by the Supreme Court in the cases of Sarada Prosad Sinha v. State of Bihar (1977) 2 SCR 357. Trilok Singh v. Satya Deo Tripathi 1980 Cr. L.J. 822 and Municipal Corporation of Delhi v. Purshottam Dass Jhunjhunwala (AIR 1983 S.C. 158) were relied upon and the tendency to analyse the case of complaint in the light of the probabilities in order to determine whether a conviction would be sustainable or not was depricated. The assessment of the materials before the court would not be justified in quashing the criminal proceeding. Same principles were also laid down in a recent case reported in AIR 1992 S.C. 604 with further observation that the powers under Section 482. Cr. P.C. should be exercised "in rarest of rare cases". 14.Having regard to the allegations made in the petition of complaint and after taking into consideration the complaint as a whole involving the petitioner and other accused named in the said complaint we are firmly ..... X X X X Extracts X X X X X X X X Extracts X X X X
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