STATE OF MAHARASHTRA Vs. YAKUB AHMED

JUDGEMENT

(1.) This is an appeal by the State against the order of acquittal passed by the Presidency Magistrate, 23rd Court, Esplanade Bombay. Though the appeal is filed against all the nine accused, who were prosecuted, it appears that notices have not been served except upon accused Nos. 4, 5, 8 and 9. By an earlier order passed by this Court it was directed that after 21st June 1971 the appeal in respect of those accused who are served should be separated from the appeal of the others who are yet to be served and the appeal should be heard and disposed of in case of those accused who have been served. In these circumstances we are hearing this appeal only in respect of original accused Nos. 4, 5, 8 and 9. The observations which we may make about the facts are, therefore, confined to these four accused only and nothing is intended to be said which would affect the State's appeal in any manner in respect of the remaining accused.

(2.) The prosecution case is that A. C. Deputy Superintendent of Police Shri Besadia instructed Sub-Inspector Lagali of the Anti-Corruption Bureau to go and keep a watch for a mechanised Arab Dhow, which was expected to arrive in the Indian waters with a view to smuggle goods. The instruction was that in the night between the 9th December and 10th December 1969 the Dhow might be seen near about the Manori Island. Having received these instructions Sub-Inspector Lagali of the A.C.B. started from Reti Bunder at about 7.30 p.m. in a police launch along with his staff. He arrived near Manori Island at about 10.30 p.m. and anchored his launch in the sea about a mile away from the shore. He was then on a look-out for any mechanised vessel that may be seen round about.

(3.) It is stated that at about 12.15 a.m. he noticed through a binocular a mechanised vessel approaching the Manori Island. He alerted his staff and directed the launch towards the vessel. Seeing the police launch, the vessel changed its direction and tried to proceed to the high seas. However, Lagali chased the mechanised vessel and overtook it within a distance of a mile or a mile and half. He forced the inmates of the vessel to stop it at the point of his pistol. He then boarded the vessel and forced accused No. 1 who was at the wheel to stop the engine. He searched the persons of all the nine accused who were on board the vessel. He also inspected the vessel and found that there were 24 packages wrapped in gunny bags in the hold. On the personal search he found an envelope with some currency notes in the right side pyjama pocket of accused No. 1 and some currency notes in the shirt pocket of accused No. 6. The envelope found on the person of accused. No. 1 was covered with celopene tape and it had three papers in it showing the list of packages and the merchandised price list of the articles in the packages. According to Lagali, he waited till about 2.30 a.m. for the arrival of the mechanised fishing vessel, which was to take away the articles from the Dhow for the purpose of smuggling them within the Indian territory. As none arrived, both the vessels were brought to Reti Bunder by about 7.15 a.m. on 10th December 1969. Information was conveyed to A.C.B. Office whereupon Besadia along with other members of the staff and panchas arrived at 8 a.m. A panchanama was made at the Reti Bunder and the articles were thereafter transferred to the A.C. Office. A second panchanama was made there after opening the packages. Twenty packages out of the 24 contained wrist watches totalling 20,033 valued at Rs. 5,73,630 on import and at Rs. 17,20,890 at the local market rate. One package contained watch straps 1010 in number valued at Rs. 3,030 on import and at Rs. 9090 at market value. One package contained some textiles collectively valued at Rs. 680 on import and Rs. 2040 at the local market rate. Two packages contained jackets containing 500 gold slabs valued Rs. 4,93,920 at international market value and Rs. 10,00,000 at the local market rate. After completing the panchanama, information was conveyed to the Custom Officers. The Customs Department then took charge of the accused as well as the goods and after interrogating the nine accused persons, statements came to be recorded. Thereafter, after completing the investigation all the accused persons were charged, firstly under Section 135(a) of the Customs Act and secondly under Section 135(b) of the same Act. They were also charged under Section 8(1) read With Section 23(1-A) of the Foreign Exchange Regulations Act, 1947. All of them were further charged under Section 5 of the Imports and Exports (Control) Act, 1947 read with Imports (Control) Order, 1955. Besides these common charges against all the nine accused, accused No. 1 who was the Tandel or the captain of the vessel was further charged under Section 135(a) of the Customs Act, 1962 for possessing two transistors. He was also charged under Section 111 read with Section 135(b) of the Customs Act, 1962. Since he was found in possession of certain Dubai currency he was also charged independently under Section 8(1) read with Section 23(1-A) of the Foreign Exchange Regulations Act. In the same manner as accused No. 6 was found in possession of Dubai currency and Indian currency he was charged under Section 135(a) of the Customs Act as also under Section 111 read with Section 135(a) of the Customs Act. He was further charged under Section 8(1) read with Section 23(1-A) of the Foreign Exchange Regulation Act, 1947.