DEPARTMENT OF CUSTOMS Vs. LUKE ANTONY KOCHERRY

JUDGEMENT

(1.) THE present petition is. filed by the Department of Customs under Section 378(iv) of the Cr. PC praying inter alia for leave to appeal against the judgment dated 23.04.2007 passed by the learned Additional Chief Metropolitan Magistrate (ACMM), New Delhi, dismissing the complaint of the petitioner against the respondent for the offence punishable under Section 135(l)(a) of the Customs Act, 1962 (hereinafter referred to as 'the Act'), on the ground that the prosecution had not been able to prove and substantiate the allegations and acquitting the respondent.

(2.) THE relevant facts leading to filing of the aforesaid complaint are that on 29.09.1998, the respondent, holder of an Indian passport, reported in the departure hall of IGI Airport, New Delhi for going to Moscow by Aeroflot Flight. After completing his immigration formalities, when the respondent reported at the Customs Counter, he was asked by a uniformed customs officer as to whether he was carrying any foreign currency or contraband goods, to which he replied in the negative. As he was proceeding towards the security hold area, he was stopped by a customs officer in plain clothes, Sh. Y. S. Rawat (PW1) and was asked whether he was carrying any unauthorized foreign currency or narcotic drugs, to which he replied in the negative. At this stage, two independent witnesses were called and the respondent was again asked whether he was carrying any unauthorized foreign currency or narcotic drugs, to which he again replied in the negative. But as the customs officers were dissatisfied with his reply, a notice under Section 102 of the Act (Ex. PW1/C) was served upon the respondent. THE respondent gave his no objection in writing by stating that search could be conducted by any customs officer. THE checked in baggage and hand baggage of the respondent were searched thereafter. One brown coloured leather purse was recovered from the briefcase of the respondent, which revealed 11000 US Dollars and Indian currency worth 6,500.00. As the respondent could not produce any document showing legal import/acquisition/possession/exportation of the recovered currency, the same were seized under Section 110 of the Act and a Panchnama (Ex.PWl/D) dated 29.09.1998 was drawn to the said effect by Sh. Y.S. Rawat(PW1), which was signed by two witnesses. Summons (Ex.PW2/A) were issued to the respondent under Section 108 of the Act. THEreafter, the statement of the respondent/accused was recorded by the Superintendent of the Department, on duty, Ms. S. Mishra (PW2) at 6:00 AM on 30.09.1998, under Section 108 of the Act (Ex. PW2/B).

(3.) PER contra, counsel for the respondent/accused supported the impugned judgment and drew the attention of this Court to the testimony of PW1 and PW2 to submit that their testimony did not corroborate the statement made by the accused under Section 108 of the Customs Act, which was subsequently retracted. He relied on the provisions of Section 77 of the Act, which deals with declaration by the owner of the baggage and submitted that in the present case, declaration of the contents was not made before the "proper officer" as stipulated under the Act and hence, the learned ACMM rightly concluded that the Department failed to prove that the accused had not declared the foreign currency before the "proper officer" namely, the first uniformed customs officer, who had intercepted the accused at the Customs Counter. He submitted that the petitioner failed to discharge the burden of proof placed on it under Section 101 of the Evidence Act, which requires the Department to prove all the facts which were asserted by him and having failed to do so, Section 106 of the Evidence Act could not be invoked against the respondent. Lastly, counsel for the respondent asserted that if the findings of acquittal, as reached by the trial court, cannot be said to be unreasonable, then the appellate Court should not disturb it in an appeal against acquittal even if it was possible to reach at a different conclusion on the basis of the material on the record and if two views are reasonably possible, on the basis of the evidence on the record, the appellate Court should not interfere simply because it would have taken a different view if the case had been tried by it. He supported his submissions by referring to the following judgments:-