Y S SHARAWAT ASSTT COLLECTOR OF CUSTOMS SPECIAL INVESTIGATION AND INTELLIGENCE BRANCH BOMBAY Vs. FIROZ HASAN ALI RUPANI

JUDGEMENT

(1.) THIS revision application arises out of order passed u/ S. 66 of the N. D. P. S. Act and S. 139 of the Customs Act in Special Case No. 25 of 1989 pending before the learned Additional Sessions Judge, Greater Bombay.

(2.) BRIEFLY stated the facts giving rise to the present revision application are as under: Respondents Nos. 1 to 4 are chargesheeted for the offences punishable under the N. D. P. S. Act and the Customs Act. They are now facing trial before the learned Additional Sessions Judge, Greater Bombay. During the trial after framing of the charge Shipping Bill No. 568738 and the Invoice No. 786 and other documents which are part of the said shipping bill were tendered in evidence through the prosecution witness Shri S. N. Channa, the Appraiser of Customs who had seized the said documents from one of the accused when the two accused, i. e. respondents Nos. 3 and 4 had presented the same before him. The learned Additional Sessions Judge did not exhibit the said documents on the ground that they did not appear to be the documents seized from the accused. The prosecution relying on S. 66 of the N. D. P. S. Act and S. 139 of the Customs Act had contended that the said documents were admissible without leading evidence to prove the same as normally required to be made under the Indian Evidence Act. It further appears that after the rejection of the said request, further attempt was made by the prosecution to get the said order reviewed on 14-2-1991. The learned Additional Sessions Judge again rejected the contention raised on behalf of the prosecution. The learned Additional Sessions Judge held that for raising the presumption under S. 139 (b) of the Customs Act, it is necessary that the prosecution must lead the evidence to prove the said documents by examining the scribe under whose instructions or in whose presence they were written and as there was no evidence as to who had prepared the shipping bill by recording the contents of the goods to be exported, it was not possible to hold that the said documents were proved. The learned Additional Sessions Judge had only exhibited the signatures on the said documents. Being aggrieved by the said order, the Assistant Collector of Customs, special Investigation and Crime Branch has moved this Court in revision.

(3.) ON behalf of the revision petitioner reliance in placed on the provisions of S. 66 of the N. D. P. S. Act and S. 139 of the Customs Act. Reliance is also placed on the deposition of the appraiser who was examined before the trial Court. It is also pointed out that the appraiser in his deposition has stated that he is an appraiser and a gazetted officer of the Customs Department. It is also pointed out that u/ S. 108 of the Customs Act any gazetted officer of the Customs has a power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with smuggling of any goods. u/s. 100 of the Customs Act, the proper officer has also the power to search suspected persons entering or leaving India. "proper Officer" as per S. 2 (34) means the officer of Customs who is assigned the functions to be performed under the Customs Act by the Board or the Collector of Customs. Now it is the prosecution case that on 13-11-1988 the present respondent No. 3 accompanied by respondent No. 4 presented Shipping Bill No. 568738 dated 8-11-1988 and Invoice No. 786 dated 5-11-1988 along with the other relevant documents to the said appraising officer in M. O. D. shed of Bombay Port Trust for examination of consignment of 275 drums having shipping marks as on the shipping bill lying in Shed No. 2 of the M. O. D. to contain Vermiculite, and in the course of examination of few drums the officer noticed some material other than the declared goods concealed in the drums. He therefore called two panch witnesses and examined the said drums which resulted in the recovery of 2629. 580 kgs. of Hashish, a narcotic substance of the market value of Rs. 1,57,77,480/- from the 90 drums which were seized under a panchanama along with the said documents presented by respondents Nos. 3 and 4. Further investigation revealed further particulars. It is not necessary to mentioned here for the purposes of this revision application the further facts. The two sets of documents which were seized by the said appraising officer were sought to be produced by the prosecution at the time of the trial and the prosecution contended that as per the provisions of S. 66 of the N. D. P. S. Act the two sets of documents which were produced by the present respondent No. 1 and which were seized by the appraiser, the gazetted officer of the Customs Department, could be admitted in evidence without any further proof in view of the presumption provided under the said Section. Section 66 of the N. D. P. S. Act runs as under: