P K JAIN Vs. RANCHHOD KISHANDAS CHHABRIA

JUDGEMENT

(1.) THIS appeal takes exception to the judgment and order dated 3-12-1986 in Case No. 298/cw/1986. The respondent was charged alongwith one Ramchand Girdharilal for offence punishable under section 135 (l) (a) (ii) and section 135 (l) (b) (ii) of the Customs Act, 1962. The trial however, proceeded against the respondent only, as accused No. 2 remained absconding.

(2.) THE prosecution case in brief is that on 21-8-1985 Ashok J. Ratnani officer of Customs, Bombay (P. W. 1) and Shri S. V. Sardar, Superintendent of customs (P. W. 2) and other officers went to the residence of the respondent. After complying the necessary formalities, search was taken of the premises in which the respondent was personally present. During the search, certain foreign goods were recovered. Panchanama in respect of that seizure was prepared which is marked as Exh. P-1. It is the prosecution case that while the said search was going on, accused No. 2 Ramchand Girdharilal arrived at the premises with bag consisting of foreign goods valued at Rs. 5,920/- M. V. with a view to sell the same to the respondent-accused No. 1. Even those goods were seized under panchanama Exh. P-2. According to the prosecution, the panchanama was drawn and completed in the presence of independent panchvijaykumar Vadhumal Dayalal (C. W. 1) and Vasant Zarapkar (C. W. 2 ). The trial Court on analyzing the evidence on record eventually acquitted the respondent of the alleged charges. The trial Court has found that the panchas to the panchanama were not examined by the prosecution but with a view to render just decision the Court on its own examined those persons as Court witnesses. The trial Court further observed that there were serious infirmities in the prosecution case. In the first place, that foreign textiles or sarees alleged to have been recovered from the premises of respondent were not shown to be notified. Besides, the trial Court found that the prosecution has not shown that the textiles were of foreign origin or were man made or synthetics textiles. It is further observed that the case made out by the prosecution of arrival of accused No. 2 on the scene at the residence of respondent with foreign goods for sale is with a view to establish the fact that the respondent was engaged in doing business of selling foreign goods at his residence. However, there was no evidence to establish the fact that the respondent was engaged in selling foreign goods. Besides, the trial Court has found that the panchanamas prepared of seizure at the residence of the respondent were doubtful because of the scoring and over writing on Exh. P-l. The trial Court opined that, that was deliberately done with a view to create circumstances against the respondent accused that the panchanama commenced at 2. 00 p. m. , whereas, the earlier noting indicated that the panchanama was prepared at 4. 00 p. m. The trial Court accordingly took the view that, on taking over all view of the matter, the prosecution has failed to establish the charges against the respondent-accused. In the circumstances, the trial Court acquitted the respondent by the judgment and order under challenge in this appeal.

(3.) MR. Satpute for the appellant contends that the trial Court was misdirected in acquitting the respondent. According to him, there was ample evidence on record to return the finding of guilt against the respondent. He submits that the panchanama clearly records that the goods seized at the 'residence of the respondent were of foreign origin. Even the respondent in his statement under section 108 of the Customs Act has accepted the position that the goods seized and as mentioned in Exh. P-l were foreign goods. The learned Counsel further contends that even the P. W. No. 1 and 2 have deposed to the effect that the goods seized from the residence of the respondent were foreign goods and there is absolutely no cross-examination on the fac-tum as to whether said goods were foreign goods or Indian origin. According to him, therefore, the charges have been clearly established beyond reasonable doubt coupled with the fact that the respondent has failed to adduce any positive evidence to show that the said goods were not smuggled goods as required by virtue of section 123 of the Customs Act. Mr. Satpute has placed reliance on the decision of the Apex Court reported in 1995 Supp. (4) S. C. C. 663 in the case of (Naresh J. Sukhawani v. Union of India and another)1, reported in 1997 (1) S. C. C. 508 in the case of (Surjeet Singh Chhabra v. Union of india and others)2, to contend that the statement made before the Customs officer is not a statement recorded by a Police Officer under section 161 of criminal Procedure Code. But, it is a material piece of evidence collected by the Custom Officer under section 108 of the Customs Act. He has placed emphasis on the observations made by the Apex Court that statement recorded under section 108 of the Customs Act can be used as substantive evidence connecting the accused with the contravention in question.