STATE OF MAHARASHTRA Vs. UMAR BADSHAH HASSAN DAMUDI

JUDGEMENT

(1.) The petitioner-complainant is aggrieved by the order of discharge passed by the learned Additional Chief Presidency Magistrate, 5th Court, Dadar, Bombay, in favour of the seven accused, who are the respondents before me. The petitioner, the Assistant Collector of Customs, had filed a complaint charging the accused with the commission of an offence under of the Customs Act, 1962.

(2.) The complaint disclosed the following facts :- In pursuance of certain information the Customs and Central Excise Officers of the Marine and Preventive Division, Bombay, raided the premises at room No. 10, Sher Mansion. Ground Floor, Kopergaon Estate, Mazgaon, Bombay-10 on 25/26th September 1969 under the cover of a search warrant. The Officers found accused Nos. 1 and 2 in the premises. While they were about to start the search, an Ambassador car bearing No. MRD-6488 came near the premises and stopped in front of the room. Accused No. 3 was at the wheel of the car and accused No. 4 was sitting by his side. On searching the car, the officers found three gunny bags containing in all 51 pieces of silver bars weighing about 92-556 Kg. These bags were lying on the footboard of the rear seat of the car. The Officers took charge of these bags. In the presence of the panchas, who had witnessed the search of the car, the premises were searched. The premises consisted of two rooms. In the first room the Officers saw 67 gunny bags stacked together. Each gunny bag bore the marking 'EMS Dubai'. The gunny bags contained red coloured saw dust. On detailed examination, the Officers noticed that the 67 bags contained 406 silver bars collectively weighing 627-166 Kgs. These were concealed in the midst of the saw dust. In the second room similar 58 bags were stored. But they had no markings. The bags contained similar red colouied saw dust. But no silver was secreted inside the bags. The Officers came across gunny cloth hand-bags lying near the gunny bags. These cloth hand-bags were similar to the bags in the Ambassador car. These gunny cloth hand-bags contained 156 silver bars collectively weighing 257.117 Kgs. All these silver bars were attached under a panchanama as the Officers entertained a reasonable belief that they were being illegally exported out of India and that there was contravention of the provisions of the Customs Act, 1962 in respect of storage and transport of the silver bars. During the search accused Nos. 5 and 6 came to the premises and they were also detained by the Officers for further enquiries. On further investigation the authorities learnt that accused No. 7 had taken the premises on rental basis with effect from 20-9-1969. The premises were meant for storing the goods of M/s Abubaker & Ismail, of which accused No. 7 was the Managing partner. The said firm mainly dealt in handloom textiles and also exported textile goods, onions, curry powder, etc. to Middle East countries. Accused No. 7 had taken the said premises without consulting his other partners. Accused Nos. 1 and 2 were the employees of accused No. 7. Accused No. 7 had taken accused No. 1 to the premises in a taxi and at that time he had handed over to accused No. 1 two keys of the said premises. From 20-9-1969 till the date of the search, accused Nos. 1 and 2 received and stored in the premises under the orders and instructions of accused No. 7 the said gunny bags containing silver bars. Every time the bags were brought and delivered by accused No. 3 in the said Ambassador car MRD-6488. The car was owned by accused No. 7. Accused No. 3 at all material times was the driver of the car. Accused No. 3 is an employee of accused No. 5. Accused No. 4 is also an employee of accused No. 5. He was working as a salesman in the shop of accused No. 5. Accused No. 5 was a goldsmith having a gold ornaments shop at Zaveri Bazar. On 25-9-1969 accused No. 3 carried three gunny bags which contained silver bars in the car owned by accused No. 5. He was instructed to carry the silver by accused No. 6. All these facts were known to accused No. 4. Accused No. 3 had agreed to share the reward for service with accused No. 4. Accused No. 6 was at all material times a bullion merchant having his shop at Zaveri Bazar. Accused Nos. 5 and 6 knew each other and were visiting the godown. On 25th September 1969 in the evening accused Nos. 5 and 6 had come to the said premises in the car of accused No. 6. On sighting the officers accused No. 6 attempted to run away. He was chased and caught by the officers. From 18-9-1969 until the date of the search of the said premises some goods were exported to the Middle East countries, from the said premises. Accused Nos. 1 and 2 had attended to the despatch work of those consignments.

(3.) The complainant says that all the accused i.e. accused Nos. 1 to 7 were concerned in the illegal transport and storage of the said silver in the said godown in contravention of the provisions of Sections, and L of the Customs Act, 1962. This was done with a view to facilitate the export of silver outside India. The silver bars weighing 976,839 Kgs. were valued at Rs. 4,88,500/- at the local market rate. It was also mentioned in the complaint that by Ministry of Finance Notification No. G.S.R. 37 dated 3-1-1969 the Central Government had declared silver bullion to be specified goods under Section 11-I of the Customs Act of 1962. By Ministry of Finance Notification G.S.R. 38 dated 3-1-1969 the Central Government had declared, inter alia, that the inland area would be fifty kilometres in width from the coast of India falling within the territory of the State of Maharashtra as a specified area for the purposes of Chapter IV-B of the Customs Act, 1962 (as amended). It is said that the accused jointly and severally had failed to intimate to the Customs Authorities the place of storage of the said silver as required by of the said Act. They were jointly and/or severally transporting from, into or within the specified area or had conveyed in such area the said silver without the necessary transport vouchers as required under of the said Act. They had also jointly and/or severally failed to maintain proper accounts in respect of the said silver as required under of the said Act. The said silver is liable to confiscation under of the said Act, and has been so confiscated by the order dated 21st June 1971, passed by the Additional Collector of Customs & Central Excise (Preventive) Bombay. In the circumstances the accused had contravened the provisions of Section, and L of the said Act, They are knowingly concerned jointly and/or severally in relation to the said silver in a fraudulent evasion of the prohibition for the time being imposed under Sections J, -K and 1-L of the Customs Act, 1962 and had thereby committed an offence under of the Customs Act, 1962.