ASSISTANT COLLECTOR Vs. EVANGELIST FRANCIES ALMEIDA

JUDGEMENT

(1.) THE Assistant Collector of Customs, the original complainant, has preferred this appeal against the order of acquittal of the Original accused No. 2 passed by the learned Additional sessions Judge, Greater Bombay in Criminal Appeal No. 412 of 1980.

(2.) BRIEFLY stated the facts giving rise to this appeal are as under. The present appellant filed a complaint against the present respondent No. 1 and original accused No. 1 Mohsin Abdul Kadar alleging that on 12-2-1976 at about 8. 00 p. m. the Customs officer Shri Tiverekar had stopped the car bearing registration No. B. M. C. 9762 which was driven by original accused No. 1 and by his side the present respondent No. 1, the original accused No. 2, was sitting. The complainant alleged that the Customs Officer Shri Tiverekar after stopping the car searched the car after asking the accused Nos. 1 and 2 if there were any dutiable goods in the car and after he was informed that there were none and in the search 32 electronic calculators of Japanese make valued at Rs. 24,450/-;a cash amount of Rs. 3,300/- and two hundies of the value of Rs. 60,000/- were found under the rear seat of the car. The complainant alleged that the said calculators were brought by accused No. 2 from Muscat on a ship "varun Yamini" on which he was working as a Second Engineer and thereafter the accused nos. 1 and 2 were taking the said contraband articles namely calculators outside the dock area. The said officer therefore, seized the said calculators in the presence of two panch witnesses and panchnama Ex. A was prepared. The Superintendent of Customs Mr. Hudah was then informed and he also arrived at the gate of the dock where the said car was intercepted. Mr. Hudah P. W. 2 thereafter is alleged to have recorded the statement of accused Nos. 1 and 2 and in that statement both the accused are alleged to have admitted their guilt. On completion of investigation the assistant Collector of Customs filed a complaint in the Court of Chief Metropolitan Magistrate, bombay. The case was ultimately tried before the learned Additional Chief Metropolitan magistrate, 11th Court, Kurla, Bombay. It appears that the accused No. 1 initially pleaded not guilty but subsequently at some stage before recording of evidence pleaded guilty and accepting the said plea of guilt of the accused No. 1 he was convicted of the offence punishable under sections 135 (1) (a), 135 (1) (b) read with 135 (1) (ii) of the Customs Act, 1962 and Section 5 of the imports and Exports (Control) Act, 1947 for the breach of Imports (Control) Order 17/55 dated 7-12-1975 and sentenced him to heavy fine. The trial proceeded against the accused No. 2 as he had not pleaded guilty. On the strength of evidence that was led before the learned Additional chief Metropolitan Magistrate, the accused No. 2 was also found guilty of the offence under Sec. 135 (1) (a), 135 (1) (b) read with 135 (1) (ii) of the Customs Act and Sec. 5 of Imports and Exports (Control) Act, 1947 and he was sentenced to pay a fine of Rs. 2000/- on each of the two counts namely under Sec. 135 (1) (i) read with 135 (1) (ii) and 135 (1) (b) read with 135 (1) (ii) of the customs Act. In default he was ordered to undergo S. I. for six months on each count. He is also sentenced to undergo R. I. for six months for offence punishable under Sec. 5 of the Imports and exports (Control) Act, 1947 and a fine of Rs. 2000/- and in default of payment of fine he was ordered to undergo S. I. for six months for the offence punishable under Sec. 5 of the Imports and exports (Control) Act, 1947 in Criminal Case No. 142/cw/80. Accused No. 2 being aggrieved by the said order of conviction and sentence preferred the appeal to the Sessions Court at Greater bombay. The learned Additional Sessions Judge allowed the appeal and acquitted the accused of the offences of which he was convicted. Being aggrieved by the said order of acquittal, the Asst. Collector of Customs has come in appeal before this Court.

(3.) ON behalf of the appellant, it is contended before me by Shri Gupte that the findings of the learned Additional Metropolitan Magistrate were based on material placed before him and there was sufficient evidence to hold that the calculators were in possession of the accused No. 2 also and they were being tried to be taken out of the dock without paying the duty. He contended that the learned Additional Chief Metropolitan Magistrate has relied on the evidence of (1) Shri tiverekar, the Customs Officer, (2) Shri Hudah P. W. 2, the Superintendent (3) the deposition of accused No. 1, who was also examined as witness by prosecution in the case and (4) statements of accused Nos. 2 and 1 recorded by Shri Hudah P. W. 2, the Superintendent under Sec. 108 of the Customs Act and there was no infirmity in the said evidence on the basis of which it could be said that the said evidence should be discarded as unreliable. He, therefore, contended that the learned Additional Sessions Judge was in error in not accepting the evidence led by prosecution and discarding the same. He also contended that the learned Additional Sessions Judge has used double standards for appreciation of evidence as he has relied on the evidence of the accused No. 1 which was in favor of the accused No. 2 and has discarded his evidence which was in favor of the prosecution. Now, really speaking there are certain admitted facts and, therefore, certain discrepancies in the evidence of Mr. Hudah, P. W. 2 which have been given some importance while appreciating the evidence of Mr. Hudah do not assume much importance. It does appear that Mr. Hudah in his deposition has stated that there was a taxi which was intercepted while in fact the prosecution's case all the while has been it was a car which was belonging to the wife of the accused No. 1. But it is clear that even both the accused No. 2 as well as accused No. 1 admitted that 32 calculators were actually found in the car below the rear seat of the car. Therefore whether it was a taxi or a car does not assume any importance and the learned additional Sessions Judge no doubt appears to have erred in giving importance to the acid discrepancy. Similarly there are certain other discrepancies in the evidence of Mr. Hudah which also have been given importance by the learned Additional Sessions Judge though they are not material. But in view of the fact that the accused No. 2 as well as the accused No. 1 do not deny the finding of 32 calculators from the car, the said discrepancies also ought not to have been given importance. Therefore, one has to proceed on the assumption that the prosecution has been able to establish that 32 calculators were found underneath the rear seat of the car and in the said car the accused Nos. 1 and 2 were sitting. It is also admitted position that it was the accused No. 1 who was driving the said car and that the said car belonged to his wife. It is further admitted position that the accused No. 2 was also found sitting by the side of accused No. 1 in the said car when it was intercepted. Now, therefore, the main question that arises for determination is as to whether the accused No. 2 could be attributed any knowledge about the 32 calculators which were found underneath the rear seat of the car. If the answer is in the affirmative then conviction of accused must follow. If answer is in the negative then the accused No. 2 must get benefit and his acquittal must be confirmed.