Y A BAWA Vs. SRINIVAS JAIN

JUDGEMENT

(1.) The facts giving rise to this revision petition, which is directed against order dated 18th December 1982 of an Additional Sessions Judge, succinctly are that way back on the night between 13/14th April 1971 a raid was conducted on premises No. 4698, Gali Umrao Singh, Pahari Dhiraj, by officials of the Customs Department pursuant to some specific secret information. Shri Phool Chand Jain, father of the respondent-Srinivas Jain was present at the house. There was a small room inside a bigger room which was found locked from outside. The father of the respondent was asked to open the lock but he told the Customs officials that the said room was in possession of a person who was known to his son Srinivas i.e. the respondent. Eventually the lock of the room was broken open and the father of the respondent when told toco-operate with the Customs officials offered to bring out the incriminating goods contained in two steel trunks and one cardboard etc. Accordingly, he went inside the room and brought out four packages which on search were found to contain 3,218 wrist watches of foreign origin besides fountain pens, side bars of watches and watch straps etc. Some exercise books containing accounts of smuggled watches were also found besides loose sheets and diaries in which something had been written. After about a couple of hours the respondent too arrived at the house. The recovery proceedings were still in progress. He was interrogated and his statement under Section 108 of the Customs Act (hereinafter called as 'the Act') was recorded. The recovered goods were seized and after obtaining the requisite information under Section 137 of the Act a complaint was instituted in Februray 1972 by the petitioner against the respondent for his prosecution under Section 135 of the Act. It was, inter alia, averred by the prosecution that the room from which the aforesaid incriminating goods were recovered contained some other luggage belonging to the respondent and neither the respondent nor his father could produce, when asked, any evidence documentary or otherwise to show legal purchase, import or acquisition of the recovered watches etc. It was further alleged that the respondent had concealed the aforesaid imported contraband goods in his room and the perusal of the documents recovered from his residence showed that he had been indulging in the business of smuggling. So, the accused was said to be guilty of keeping, concealing and harbouring the abovesaid goods which were subsequently confiscated consequent upon adjudication proceedings and a personal penalty of Rs.20,000.00 (twenty thousand) too was imposed on the respondent.

(2.) After recording pre-charge evidence, a charge was framed against the respondent on 28th August 1983 to the effect that the aforesaid 3,218 incriminating wrist watches and pens etc. of foreign origin were recovered from the premises in his possession and that he had acquired their legal possession fully knowing that the possession and dealing in the same was illegal.

(3.) The prosecution evidence concluded as far back as 12th April 1978. Thereafter the respondent closed his defence on 27th May 1978. However, on an application dated 16th September 1978 having been moved by the prosecution under Section 3 11 for recalling the prosecution witness Shri N.S Bhatnagar, who had seized the incriminating articles, to formally tender the seized goods in evidence which the prosecution had failed to do because the keys of the trunks containing the wrist watches etc. were not then available, the court permitted further cross-examination of Shri N.S. Bhatnagar. However, on 23rd February 1981 when the watches produced by the prosecution were taken out of the trunks and counted, they were found to be 3,358 in number. Upon this the court called upon the prosecution to explain the discrepancy. However, an application was made by the prosecution that the watches should be counted at the Customs House because they were of various makes. The said application was rejected by the trial Court vide order dated 25th Feb. 1981 and the court observed that the watches had been counted in the court itself on 23rd February 1981 and it appeared that the same were not the case property. The court, however, allowed time to the prosecution to sort out the case property. Recounting of the watches was then done on 3rd March 1981 and the total number of the same was found to be 3, 331. Shri Bhatnagar was further examined and cross-examined on 14th April 1981 and 25th August 1981 respectively. In view of this development the trial Court amended the charge on 14th September 1981 by stating that the respondent was found to have acquired 3,331 wrist watches of foreign origin (besides, of course, fountain pens, side bars and watch straps etc.). Subsequently, an application dated 3rd December 1981 was made by the respondent purporting to be under Section 248(1) Code of Criminal Procedure for ordering his acquittal. He, inter alia, pointed out that the prosecution had failed to connect, 3,331 wrist watches produced in court to be the same which had been allegedly seized from the house of the respondent both quantity-wise and description-wise. Further, according to him, there was no valid sanction for his prosecution in respect of 3,331 wrist watches. However, the said application was dismissed by the trial Court vide order dated 11th March 1982 Feeling aggrieved the respondent filed a revision petition against the said order in the Court of Session. The revision petition was heard by an Additional Sessions Judge who allowed the same vide order dated 18th December 1982 and discharged the respondent. He, inter alia, observed that the case was still at the stage of charge and had no.t reached the destination i.e. the stage of final order. So, it was open to the prosecution to institute a fresh complaint against the respondent after obtaining a proper and valid sanction in respect of the increased number of watches.