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TMI Blog2003 (2) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... that while the said search was going on, accused No. 2 Ramchand Girdharilal arrived at the premises with bag consisting of foreign goods valued at Rs. 5,920/- M.V. with a view to sell the same to the respondent-accused No. 1. Even those goods were seized under Panchnama Exh. P-2. According to the prosecution, the Panchnama was drawn and completed in the presence of independent panch Vijaykumar Vadhumal Dayalal (C.W. 1) and Vasant Zarapkar (C.W. 2). The Trial Court on analyzing the evidence on record eventually acquitted the respondent of the alleged charges. The Trial Court has found that the panchas to the Panchnama were not examined by the prosecution but with a view to render just decision the Court on its own examined those persons as Court witnesses. The Trial Court further observed that there were serious infirmities in the prosecution case. In the first place, that foreign textiles or sarees alleged to have been recovered from the premises of respondent were not shown to be notified. Besides, the Trial Court found that the prosecution has not shown that the textiles were of foreign origin or were man-made or synthetics textiles. It is further observed that the case made out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India and another decision reported in 1997 (89) E.L.T. 646 (S.C.) = 1997 (1) SCC 508 in the case of Surjeet Singh Chhabra v. Union of India and Others to contend that the statement made before the Customs officers is not a statement recorded by a Police Officer under Section 161 of Criminal Procedure Code. But, it is a material piece of evidence collected by the Custom Officer under Section 108 of the Customs Act. He has placed emphasis on the observations made by the Apex Court that statement recorded under Section 108 of the Customs Act can be used as substantive evidence connecting the accused with the contravention in question. 4.Mr. Gadkari appearing for the State of Maharashtra has supported the above contention advanced on behalf of the appellant. On the other hand, Mr. Dhakephalkar for the respondent contends that the submission canvassed before this Court by Mr. Satpute clearly over looks the mandate of Section 135 of the Customs Act. He submits that to attract the provisions of Section 135(1)(i)(a), it was imperative for the prosecution to establish the fact that the goods seized from the residence of the respondent-accused were dutiable. It is only then the pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate jurisdiction. 5.Having considered the rival contentions, I shall first deal with Section 135(1)(a). As rightly pointed out by Mr. Dhakephalkar, said provision has been analyzed by the Apex Court in the case of Asstt. Collector of Customs (supra). In Paragraph 4 of the said Judgment, the Apex Court has analysed the said provision and observed that the same is structurally divisible into three parts which reads thus : "(1) If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. (2) If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being imposed under the Customs Act, 1962 with respect to such goods, he shall be punishable with imprisonment for a term which may extend to three years or with fine or both. (3) If any person is in relation to any goods in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any prohibition for the time being impose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is difficulty Mr. Satpute placed emphasis on the panchnamas and statement of the respondent purportedly recorded under Section 108 of the Act. On close examination of Panchnama Exh. P-1, the position that emerges is that it records that during the search, foreign made textiles, cosmetics and other items were recovered as per Annexures A and B to the said Panchnama. Whereas, Annexures A and B only indicate the nature of items without giving description thereof or the name of the country where the same has been manufactured etc. Be other as it may, Mr. Satpute placed much emphasis on the statement of respondent recorded under Section 108 of the Customs Act to the following effect :- "During the course of search foreign origin textiles, cosmetics etc. as detailed in the Panchnama, valued at Rs. 49,808/- CIF and Rs. 1,48,274/- at M.V. were found from cupboards and suitcases, which were lying in the flat. The above said foreign origin textiles, perfumes etc. were purchased by me from various passengers who come to sell the same at my residence. These passengers regularly visit Dubai and Singapore and bring the goods in their baggage. These passengers have sold these goods to me in pi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o even remotely suggest that the goods which have been recovered from the residence of the respondent were duty chargeable goods. In that sense, reliance placed on Section 12 of the Act will be of no avail to the appellant. 8.Mr. Satpute then contends that Section 111 provides for confiscation of improperly brought goods and the goods which has been so recovered from the respondent have already been confiscated by the authorities by following procedure established by law. This submission clearly over looks that the confiscation proceedings are independent of the criminal prosecution of the accused. In a given case, the goods such as in the present case can be confiscated but that does not mean that the prosecution would succeed on that basis without establishing the basic ingredients to make out the offence during the evidence in the criminal case against the accused. Reliance was placed on Section 111 Clause (d) and (1). However, even that is of no avail to the appellant. Mr. Dhakephalkar has rightly contended that to attract Section 111(d) or for that matter Clause (1) of that section, the prosecution will have to establish that the goods were prohibited or dutiable goods under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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