C.C. NAGPURE Vs. MACHINDER N.KOLI

JUDGEMENT

(1.) THIS is an appeal filed by the Customs Marine and Preventive Wing, Bombay against the order of acquittal in case No.635/CW/87 on the file of the learned Chief Metropolitan Magistrate, Esplanade Bombay acquitting the accused of the charges under section 135(1)(a) and 135(1)(b) read with 135(i)(ii) of the Customs Act and Section 5 of Import and Export (c) Act, 1947. In brief prosecution' case in that during the night of 28th December 1986 when P.W.1 Mohan Philip and Inspector of Marine and Preventive, Mr.Reddy and one sepoy were patrolling in customs launch between Ferry Warf and Bombay Floating Lights off Bombay shores, they noticed a country craft coming from Cuff Parade and proceeding towards Bombay Floating Lights. It is the case of the prosecution that the vessel went closure to one of the ships anchored in Bombay Floating Lights. The customs vessel kept a safe distance and close watch on the launch. Thereafter they noticed that the country craft came back to the Cuff Parade and that they followed it. Suddenly the country craft increased the speed and tried to go away from them towards Hazi Ali side. The customs vessel followed them and therefrom the country craft changed its course and started proceeding towards Alibaug side. Inspite of signals given by the customs Officer the country craft didn't decrease the speed. At that juncture two rounds of shots were fired in the air by the inspector Reddy and Sepoy. Finally as there was no op-tion, as instructed by the Inspector Reddy, the Sepoy fired and in that two accused viz., accused No.1 and 4 got injured. The officers also noticed in the mean while that some packages were thrown out from this country craft into the sea. Finally they brought the country craft alongwith the members of the crew to the Mole Station from where they sent accused No.1 and 4 to St. Georges Hospital for treatment. After the investigation panchanama was prepared, necessary sanction was obtained and finally a complaint was filed in December 1986.

(2.) THE prosecution examined P.W. 1, Mohan Philip, the Inspector of Marine Preventive Wing who has deposed about the prosecution case. The witness narrated as to what happened and he has also given account as to how they chased the country craft. He also deposed specifically that they saw cer-tain packages being thrown from the country craft into the sea. P.W.1 further stated in his evidence that before the accused were shot at, warn-ing shots in the air were fired. The prosecution examined another witness Shri Mayokar Superintendent of Customs as P.W. 2. This witness has deposed about recording of the statements from all the 6 accused. According to him all the six accused have admitted having taken the vessel on hire and loading the vessel with articles such as 10-12 cartons of Wisky, 10 cartons of cigarattes and one refrigerator. Another witness by name Rajan Govindan Naidu who is panch witness has also been examined.

(3.) THE learned Magistrate who tried the case after elaborately consider-ing the oral and documentary evidence acquitted the accused. In so doing the learned Magistrate has come to the conclusion that the evidence of P.W.1 is not acceptable as the complaint given by him does not show that the vessel was going away from the shores of Bombay towards Hazi Ali and that it says as if the vessel was coming towards the shores of Cuffe Pa-rade, that there was a chase, and the firing at the vessel. The learned Magistrate has also observed that the officer has deposed to the facts which were not properly mentioned in the remand application as well as in the complaint and that being so it shows that the officer had tried to make different story which is different from one made in the complaint. As far as the statements given by the accused to the P.W. 2 are concerned, the learned Magistrate has pointed out that those statements have been retract-ed by the respective accused and that apart, before recording such state-ments the P.W. 2 failed to give caution to accused to ensure that their statements are voluntary and true. Finally the learned Magistrate has also rejected the evidence of P.W. 1 by holding at the evidence of P.W. 1 is not sufficient enough to base the conviction and there is no independent material to show that the customs officers tried to retrieve any of the packages which were thrown.