STATE OF MAHARASHTRA Vs. HASMUKH HARGOVIND SHAH

JUDGEMENT

(1.) THE State of Maharashtra, through this appeal has assailed the correctness of an order of acquittal passed against the respondent in Criminal Appeal No. 280 of 1982 by the learned Additional Sessions Judge, Greater Bombay, on 22-8-1985. The respondent-accused was the original accused No. 3 and was put on trial along with five other accused persons before the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay. The six accused stood charged with having committed offence punishable under the provisions of the Imports and Exports (Control) Act and the Customs Act.

(2.) BRIEFLY stated, it was alleged that the accused No. 3 who is the present respondent and who was working in Dubai at the relevant time had along with the remaining accused been parties to an ingenious method of smuggling various foreign items into the country. The prosecution contended that accused No. 3 used to dispatch parcels by sea, to certain destinations via Bombay and that the routing of these parcels was such that the transshipment had to take place at Bombay. While the parcels were at Bombay, it is alleged that the two of the remaining accused who worked in the Foreign Post Office used to open the parcels in question and take out the contraband such as watches, costly sarees etc and that the remaining accused used to dispose of them. In the month of August, 1978 a consignment of 11 such parcels had arrived in Bombay and it is alleged that pursuant to the arrest of the accused persons that they admitted to their activities in the course of their statements recorded under S. 108 of the Customs Act. It is further alleged that three of the parcels in question were opened by the Customs authorities on accused No. 3 pointing them out and that they were found to contain watches and watch straps collectively valued at Rs. 95,310/- at local market value. The accused were thereafter arrested and put on trial before the learned Magistrate. After hearing the parties and scrutnising the evidence, the learned Magistrate discharged accused Nos. 1, 4, 5 and 6. The cases of accused Nos. 2 and 3 were separated because in the opinion of the trial Court, accused No. 2 could only be held liable in respect of certain other transactions, pertaining to sarees etc. The trial, therefore, proceeded against original accused No. 3. The prosecution evidence consisted of his statement recorded under S. 108 of the Customs Act on 5-8-78 and his alleged identification of the parcels on 7-8-1978, as also the evidence of the concerned Departmental Officers. The statement of the accused had been retracted by him apart from which, he had filed certain applications before the trial Court in which he had made serious charges against the customs officers in respect of his having been tortured, assaulted, intimidated etc. The learned trial Magistrate accepted the prosecution evidence and convicted the appellant under both heads and awarded him a sentence of rigorous imprisonment for six months and fine of Rs. 10,000/- in default rigorous imprisonment for two months under the first charges and rigorous imprisonment for 2 months and fine of Rs. 3,000/- in default rigorous imprisonment for one month under the second head of charge. The matter was thereafter carried in appeal to the Court of Sessions and the learned Sessions Judge after a very detailed and careful consideration of all the materials before him as also the law on the point, set aside the conviction and acquitted the accused of both the heads under which he had been convicted. It is against this order of acquittal that the present appeal has been filed.

(3.) THE learned A. P. P. contends that the interference by the appeal Court was unjustified. It is his submission that the retraction of the 108 statement and the allegations made against the Customs Officers are routine and that there is nothing special to distinguish this vase from several other similar ones. He submits that there is no bar to the Court excepting the veracity of the statement recorded under S. 108 of the Customs Act; that it is now well settled law that such a statement is admissible and that the same can be relied on in evidence and further more that the remaining facts and circumstances on record of this case are strong enough to sustain the conviction. He has seriously questioned the reasoning of the appeal Court whereby the evidence of the Customs Officers has been doubted on material points and the learned A. P. P. submits that the Court was not justified in recording the finding that the statement was not voluntary. The learned A. P. P. also contends that the identification by the accused of the three parcels is a separate, individual distinct act and is totally unconnected with the recording of his statement and that therefore the view taken by the learned Additional Sessions Judge is erroneous in law.