MAHFOOSKHAN MEHBOOB SHEIKH Vs. R J PARAKH

JUDGEMENT

(1.) In pursuance of prior information and intelligence, the concerned Customs Officers lay in wait for the arrival of the two motor-trucks enroute from Kolhapur as they had suspected that both the vehicles carried smuggled articles. The members of the raiding party concealed themselves for keeping a watch near the New Bombay Bridge on April 15, 1976. The information appears to have proved to be fruitful, in that, within a short time, a motor-truck No. MHT-2533 was seen proceeding towards Bombay side. The driver of the vehicle obviously suspected danger on sighting the Customs Officers and, therefore, he was in a mood to bolt away from the spot. However, he was chased for a short distance and ultimately, the truck was intercepted. The ignition-key was removed. Apart from the driver, another person was travelling in the said truck and he claims to be the cleaner of the said truck. The panch-witnesses were also present on the spot. As the information related to the arrival of two trucks, the members of the raiding party continued to lie in wait at the same spot expecting arrival of the second truck. Their guess work also proved to be advantageous, inasmuch as, within a short time, another truck was sighted proceeding towards Bombay side. The driver was more active in respect of the second vehicle, inasmuch as, he was in no mood to surrender and wanted to make his escape good and for that purpose, he travelled a further distance in the same truck. The Customs Officers obviously realised a further potential danger and in order to arrest the further travel of the truck, they had to resort, first of all, to opening fire in the air so as to alarm the truck driver and compel him to bring the vehicle to a stand-still. This did not prove to be quite fruitful and, therefore, they had to shoot at one of the wheels of the truck, on account of which it became flat and as a further result, the vehicle had to be brought to a stand-still. The truck driver then realised that the game was completely exposed and, therefore, he surrendered at that stage. It is alleged that this second incident occurred near the Golf Club within the limits of Chembur, which was not far away from the spot where the first truck was intercepted. The second truck had its number as MHL-3091 and had two persons travelling---the driver and the cleaner. Both the vehicles contained ostensibly sugar bags and on a careful search, which was effected in the presence of the panchas, at the Central Excise Godown after unloading the said sugar bags, it was revealed that in one truck, about 21,748 wrist watches, some rolls of sarees and other textiles entirely to the tune of Rs. 18,43,898/- on the basis of market value, were un-earthed. This was in truck No. MHT-2533. In the other truck, about 22 tins and one suit case were found containing 22,142 wrist watches, rolls of sarees and other textiles to the tune of Rs. 16,42,713/-, were found. Both the vehicles thus contained 22 tins and one suit case each. In all, four persons came to be apprehended as the persons travelling in the said two vehicles. In due course, the investigation commenced vigorously and the statements of these persons came to be recorded under section 108 of the Customs Act. It was disclosed during the course of investigation that the trucks were loaded within the limits and outskirts of the city of Kolhapur though we are not very much concerned with the details of the investigation or with the outcome of investigation as it is not germane to this proceeding.

(2.) The Customs Officers after observing the necessary formalities, appraised the superiors and obtained the necessary sanction to prosecute these four accused persons in two different cases and ultimately, two separate complaints came to be lodged in the Court of the Chief Metropolitan Magistrate, Greater Bombay, for offences under sections 135(1)(a) and 135(1)(b) read with section 135(1)(i) of the Customs Act, 1962. Criminal Case No. 131/CW/79 pertains to truck No. MHL-2533 while Criminal Case No. 130/CW/79 pertains to truck No. MHL-3091, Both these complaints came to be lodged on the same day, that is, 19th March, 1979. Mehfooz M. Shaikh and Lalle Samsuddin are the accused persons in Case No. 130/CW/79, while Mehboobkhan Mohamed Khan Allauddin Abdul Wahid are the accused in Case No. 131/CW/79. It may incidentally be observed that all these articles came to be attached under a Common Panchnama and it is further clear from Annexure B that came to be accompaniment of both the complaints, gives out the names of 14 witnesses who are identical in both the cases. The complainant is one Shri R.J. Parakh, Assistant Collector, Marine and Preventive Wing, Customs (Preventive) Collectorate, Bombay.

(3.) It appears from the record that in the routine course, the said two cases came to be made over by the learned Chief Metropolitan Magistrate to the learned Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay. A statement has been made at the bar on behalf of the prosecution that several of the cases lodged under the Customs Act have been made over to this particular Court for the purpose of disposal in accordance with law and the said two cases followed suit among other cases. After those were received by the said Court of the learned Additional Metropolitan Magistrate, Criminal Case No. 131/CW/79 relating to truck No. MHT-2533 was given a fresh number being Criminal Case No. 48/CW/79, whereas, the other case, namely, Case No. 130/CW79 pertaining to truck No. MHL-3091 was numbered as Criminal Case No. 47/CW/79.