DEPARTMENT OF CUSTOMS Vs. LUKE ANTHONY 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(1)(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 As the respondent could not produce any document showing legal Rs.6,500/ -. import/acquisition/possession/exportation of the recovered currency, the same were seized under Section 110 of the Act and a Panchnama (Ex.PW1/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.) COUNSEL for the petitioner submitted that while passing the impugned judgment, the learned ACMM completely ignored the voluntary statement of the respondent made under Section 108 of the Act and the Punchnama duly signed by him. He submitted that the provisions of Section 58 as also 106 of the Indian Evidence Act, 1872 (hereinafter referred to as "the Evidence Act") were not taken into consideration. He further argued that the trial court failed to appreciate the fact that there was no reason for the Department to have falsely implicated the respondent and once possession was established, the onus shifted to the respondent to rebut the presumption against him, which he failed to discharge. He urged that in the light of the evidence placed on the record, the learned ACMM erred in concluding that the Department had failed to prove that the accused had not declared the foreign currency before the "proper officer". In support, he relied on the evidence of PW1 and the Panchnama and stated that merely because the Panchnama was not proved by the two Panchas, it does not mean that the same could not be relied upon as the same was also signed by PW1, who corroborated the contents thereof in his testimony. It was canvassed on behalf of the petitioner that retraction of the statement made by the respondent under Section 108 of the Act, was of no value as he had failed to prove the fact that the said retraction was made for valid reasons and in these circumstances, the confession made by the accused under Section 108 of the Act alone was sufficient to indict him, without any corroboration, though in the present case, the said statement was corroborated by both, by PW1 and PW2, as also the Panchnama. Counsel for the petitioner relied on the provision of Sections 58 and 106 of the Evidence Act and contended that as it was within the special knowledge of the respondent alone that he was carrying foreign currency, the burden of proving that the same was duly declared by him, lay at his door. In support of his submissions, counsel for the petitioner relied upon the following judgments: -