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TMI Blog2001 (1) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ucting patrol near the buoy. At about 2.00 a.m. on 8-9-1990, the Superintendent of Customs and other officers noticed a launch approaching the shore and they gave conventional signal to stop the launch, but since it did not stop, they gave a chase and opened fire. When they intercepted the same they found A5 to A8 inside the launch and one cloth bag containing gold bars kept concealed in the Engine Room of the launch. Thereafter, the launch was brought to Old Port Wharf, Tuticorin. They examined the launch in detail and found the bag containing the gold bars in a cloth bag having markings "New Buhari Stores, W.G.C. Road, Tuticorin" on both sides. They also saw 12 heavy parcels covered with white colour plaster and on opening the same, they found 10 gold bars with foreign markings in each parcel and there were totally 120 gold bars in the said 12 parcels. Out of 120 gold bars, 55 gold bars contain the markings "Union Bank of Switzerland - 10 Tolas - Melter - Assayer - 999.0", 23 gold bars contain the markings "Credit Suisse - 999.0 - 10 Tolas - Essayeur Fondeur" and that the balance 31 gold bars contain the markings "Johnson Matthey - London 999.0 - 10 Tolas". Then they went to Cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rosecution. M.Os. 1 to 8 were also marked. After the evidence of prosecution was over, the accused were examined under Section 313 Cr.P.C. to explain the circumstances appearing in the evidence against them and they denied their complicity in the commission of offence and on behalf of the accused D.Ws. 1 and 2 were examined and Exs. D1 to D8 that are the retracted statements of Accused 1 to 8 were marked. D.W. 1 being a mahazar witness to the seizure turned sides and then gave evidence that he signed in 5 or 6 blank papers. D.W. 2, who is an Assistant in the Trial Court only marked Ex.C. 8, which is the retracted statement of A4. 6.On the side of the prosecution, P.W. 1, the Superintendent of Police, Customs and Central Excise Department, gave evidence that on 7-9-1990 on the information he reached fishing harbour at Tuticorin at about 10.45 p.m. and while he was patroling there along with his party, he noticed a boat at about 1O' clock in the early hours of 8-9-1990 and then intercepted the same. He would also say that he found the accused 1 to 3 in the said boat. This aspect of the evidence was not challenged by A1 to A3 in the cross-examination. What has been elicited in the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st him is his own statement recorded as Ex.P.8 as well as the statements of these co-accused 1 to 3. In Ex.P.8, he has stated that he came to know one Razack of Ceylon while he was travelling in a bus from Madurai to Tuticorin and they had a private talk regarding smuggling of gold bars to be handed over to one Abdullah and pursuant to their acquaintance and understanding during the third and fourth week of August, 1990, thrice the said Razack sent 50, 80, 100 gold bars respectively and the same were received by the accused 1 to 3 on his behalf and handed over to him, who in turn handed them over to the said Abdullah and at each times, the said Abdullah gave him a commission of Rs. 15,000/-. Further, he would say that Razack from Colombo used to contact him over phone for these transactions. Again at about 10.00 a.m. on 7-9-1990, he received a phone call from Razack, who told him that he was sending 120 gold biscuits and that it would reach Tuticorin Harbour near White Buoy between 1.00 a.m. and 3.00 a.m. and before meeting the persons who were in the launch, match stick has to be lighted three times and then the word "Raja" should be uttered and immediately those who come in the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tatements of A5 to A8. Insofar as A5 to A8 are concerned, during the course of their cross-examination of P.W. 1, nothing has been elicited to discredit the evidence of P.W. 1 except the following points. 8.P.W. 1 in his evidence has stated that the gold which was seized at the Sea was entrusted with two officers. Much has been said about this statement of the witness questioning the very seizure itself as if the seizure was made at the high sea itself and not in the port as alleged by P.W. 1. P.W. 1 is catagoric that the entire seizure was made and mahazars prepared only at the shore and this entrustment was only for safety purpose. Without any detailed search when the Superintendent of Customs finds gold biscuits in the launch, they cannot be left abandoned uncared for before their regular seizure is made and that is why, P.W. 1 has taken care to post two persons to safeguard the gold biscuits. This does not mean that the gold biscuits were seized at the high seas itself. The suggestion that the accused were threatened, coerced and the statements were forcibly obtained was denied by P.W. 1. Except this bare suggestion, nothing has been elicited to reject the evidence of P.W.1, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so is that they were fishing and at that time they were taken by the officials. As in the case of the launch so in the case of the boat also, there was not even a single fish. Under these circumstances, there is no proof or even a semblance of torture or coercion on the part of the customs officials, while statements were recorded from the accused concerned. Therefore, these statements of A1 to A3 as well as A5 to A8 are quite voluntary and they are also corroborated by the evidence of P.W. 1 and the seizure of 120 gold biscuits as well as fishing nets of foreign origin. Therefore the ruling sited by the defence is of no avail to the accused. As against the abovesaid ruling, the learned Special Public Prosecutor appearing for the State relied on the ruling of the Apex Court rendered in the case of Naresh J. Sukhawani v. Union of India reported in 1996 (83) E.L.T. 258 (S.C.) = 1996 SCC (Crl.) 76 wherein it has been held that the statement made before the customs officials is not a statement recorded under Section 161 of the Criminal Procedure Code, 1973; therefore, it is a material piece of evidence collected by Customs officials under Section 108 of the Customs Act and that materia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against A4 also. 11.In these types of cases, where everything happens planned as to how the offence has to be committed, we cannot expect witnesses for each and every piece of evidence and there was also no necessity for A1 and A3 to implicate A4. No questions were asked during the course of cross-examination of P.W. 1 to elicit that A4 has been falsely implicated in this case. Further, A4 himself has given a statement before the customs officials and it has been marked as Ex. P.8, wherein he has admitted that he knows Razack of Colombo and got himself acquainted with him while travelling in the bus from Madurai to Tuticorin and the said Razack introduced one Abdullah also. He had further admitted that during the third and fourth week of August as well as in the month of July, thrice he received gold bars through A1 to A3 and handed over to one Abdullah and that he engaged A1 to A3 for the purpose of receiving smuggled gold. He had also admitted that the said Razack used to contact him over phone from Ceylon regarding the despatch of the jewels and this time also he contacted him on 7-9-1990 at about 10.00 a.m. in the morning and told him that the launch will reach Tuticorin by 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Buhari Stores, W.G.C. Road, Tuticorin". It is the suggestion of the defence that these gold bars were lying uncared for and when the customs officials came across them, they foisted a case against these innocent accused. This suggestion is not only vague but it cannot be even accepted in the absence of any animosity for the customs officials against any one of the accused. Why should the innocent persons be roped-in in such a grave crime? Therefore, the suggestion made by the defence has no force and is liable to be rejected. It is a case where three persons were intercepted in a boat and the customs officials came to know that they were waiting for the arrival of a launch from Ceylon with smuggled gold and they were also laying in wait and as and when the launch was cited they signalled and when the launch took a different side, immediately, shooting was made in the air and that is how the launch was captured. Under these circumstances, what was the necessity for the customs officials to wait there for a launch to arrive if earlier, they had found the gold bars in the shore itself? Therefore, it is a clear case that A1 to A3, on instructions of A4 were waiting in the sea near the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel has no substance. 15. The next contention of learned counsel appearing for the accused is that no independent witnesses were examined to prove the seizure. It is a case where the launch was intercepted in the Sea, taken to the shore and then seizure was effected in the shore. No doubt, in this case, no independent witnesses have been examined to prove the seizure, though they have attested the seizure. In fact there is no use even to examine any independent witnesses for the seizure of the boat because the boat was intercepted at the high seas and no independent witnesses could have been secured at the odd hours during night time. Even if any independent witnesses are taken along with the customs officials, it would be canvassed that they are interested and stock witnesses. In fact, the Mahazar witness, who was examined as D.W. 1 would say that he signed in blank papers. Therefore, there is no impediment in relying on the evidence of custom officials provided their evidences, appears to be trustworthy and reliable. The learned Special Public Prosecutor relied on the ruling of the Supreme Court reported in 1996 SCC (Crl.) 515 in the case of Tahir v. State. The Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... during the course of cross examination said that the gold bars were entrusted with the customs officials, it does not mean that the seizure was completed at the sea itself. Since the place of occurrence was no doubt sea, P.W. 1 in the cross examination said "Kadalil Piditha Thangathai". Reference was made to this phrase by the learned Sessions Judge to acquit the accused, which according to me is not the proper approach in such a case. 18.The Trial Court has also commented on the statements of these accused 5 to 8 on the ground that the statements were not recorded in Singalese but straightaway recorded in Tamil. It is the evidence of P.W. 3, who claims to know Singalese that he only functioned as an interpretor between the officials and the accused to interpret the statements in Tamil. The learned Sessions Judge says that their statements should be recorded in Singalese and then should be translated into Tamil. I do not think, this irregularity will affect the prosecution case in toto. According to the learned Sessions Judge, merely because, the cloth bag was opened in the sea itself, the customs officials have seized all the gold bars there itself. The relevant portion of his j ..... X X X X Extracts X X X X X X X X Extracts X X X X
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