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TMI Blog2002 (4) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ct and also under Section 3(2) of the Exports and Imports Act r/w. 135(I)(b)(I) of the Customs Act and was sentenced to undergo RI for 2 years and to pay a fine of Rs. 2,000/-, in default, to suffer RI for 3 months. He was also convicted for an offence under Section 71 r/w. 85(1)(ii)(a) of the Gold Control Act and was sentenced to undergo RI for one year and to pay a fine of Rs. 2,000/-, in default, to suffer RI for 3 months. The accused Nos. 4 to 7 were convicted for an offence under Section 111(d) r/w. 135(b)(I) of the Customs Act and were sentenced to undergo RI for one year and to pay a fine of Rs. 2,000/- each, in default, to suffer RI for 3 months. All the accused were ordered to suffer the imprisonment concurrently. 2.As against the Judgment of conviction and sentence the accused went on appeal before the Principal Sessions Judge, Madurai, who heard their appeals in C.A. Nos. 91, 92, 97, 98 and 100 of 1992 and allowed their appeals, thereby set aside the conviction and sentence. Hence the Assistant Collector of Central Excise has preferred these appeals. 3.C.A. No. 454 of 1993 was filed against the acquittal of Accused No. 7. C.A. No. 551 of 1993 was filed against the ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el under the bed. They were seized under Ex. P1 mahazar. Thereafter, they have also seized a TC-8383 Taxi, which was found stationed near Blue Star Hotel which is opposite to Bharani Hotel. The seizure Mahazar is Ex. P2. Trip Sheet Ex. P3 was also seized from the Taxi. Ex. P4 Diesel Bill for filling Diesel at Thirumangalam was also seized. Thereafter, accused Nos. 1 and 2 were taken to the Customs Office, Thoothukudi, where they were examined. Search was made in the house of accused No. 3. The statement given by accused No. 1 is Ex. P9. Ex. P10 statement was recorded from A2. 6.Thereafter, on information PWs. 1 and 2 went to Pudukottai, spotted one Palmyra tree, whereby they dug out a place for 2 feet and found 50 gold bars in MO.3 cloth bag with adhesive tapes MO.4 series and another cloths MO.5 under cover of Ex. P8 mahazar. They found Johnson Mathew, London seal in all the 50 gold bars. Thereafter, the contraband was weighted and quality was tested. Neither Susai nor Murugesan could be arrested. On the involvement of other accused, they were also arrested. Statements were recorded from them after obtaining sanction as well as authorisation to prosecute. All the accused were pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e learned Sessions Judge correctly because PW. 4 turned hostile. The fact that some of the accused went in a taxi driven by PW. 4 cannot be doubted. Even insofar as PW. 5 is concerned, the learned Sessions Judge records that PW. 5 is the person whose evidence discloses that room No. 208 was reserved by one Mr. Pandian and in the absence of examination of that Pandian, the prosecution cannot be taken to have proved that accused Nos. 1 and 2 stayed in the same room on the night of 21-10-1989. The case of the prosecution is that there was no such Pandian at all and the room was booked in the name of a fictitious person and accused Nos. 1 and 2 being Police Constables, took care not to book the room in their names. Be it as it may, the fact remains that PWs. 1 and 2 went to the Bharani Hotel at about 5.45 a.m. and they recovered 30 gold bars. It is the evidence of PWs. 1 and 2 and the moment they entered the room, accused Nos. 1 and 2 were seen perturbed and on demand accused No. 1 took the gold bars from underneath the bed, and the gold bars were wrapped in a towel and then handed them over to PWs. 1 and 2. Evidence of PW. 1 was disbelieved by the learned Sessions Judge purely because ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oins on the person summoned by the officer to state the truth. The Supreme Court also in the case of Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. and Others reported in 2000 (120) E.L.T. 280 (S.C.) = 2000 Supreme Court Cases (Criminal) page 1275 held as follows:- "The ban contained in Section 25 of the Evidence Act is an absolute ban. But there is no ban in regard to the confession made to any person other than a Police Officer, except when such confession was made while he is in police custody. The inculpatory statement made by any person under Section 108 is to non-police personnel and hence it has no tinge of inadmissibility in evidence if it was made when the person concerned was not then in police custody. Nonetheless such a statement should be scrutinised by the Court in the same manner as confession made by the accused person to any non-police personnel." In this case when PWs. 1 and 2 recorded the confession statements of accused Nos. 1 and 2, they cannot be said to be under police custody. Therefore, Exs. P9 and P10 well admissible in evidence. Since these statements of both the accused corroborates the evidence of PWs. 1 and 2, ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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