HARBANSINGH KRIPALSINGH Vs. M K CHAKARBORTY

JUDGEMENT

(1.) The facts are rather interesting, illustrating how an exercise in unfounded speculations makes the impugned order vulnerable.

(2.) A complaint was lodged by the Assistant Collector of Customs under sections 135(1)(a) and (b) of the Customs Act in the Court of the Additional Chief Metropolitan Magistrate, 40th Court, Girgaum, Bombay, which is the subject-matter of Criminal Case No. 23/Cw of 1979. It is contended inter alia in the said complaint that accused No. 2 used to send watches of foreign origin from Bombay to Delhi through accused No. 1, who was being used as a carrier. Accused No. 2, who is the present petitioner, got himself acquainted with accused No. 3, who was at the material time Traffic Assistant in the Indian Airlines Corporation. On April 28, 1973, the petitioner accused No. 2, arranged to send about 1365 wrist watches in two suit-cases through accused No. 1. The petitioner had an inkling as a shrewd person that the weight of those two suit cases would obviously be more than the permissible limit and, therefore, he approached accused No. 3 earlier near a hotel and requested him to help accused No. 1 to clear off the excess baggage. Accordingly, on 28th April, 1973 accused Nos. 1 and 2 came to Santacruz Air-port for boarding a flight from Bombay to Delhi. Accused No. 3 met them at the Air-port and at that time from some distance the present petitioner pointed accused No. 1 to accused No. 3, who assured to do the needful and having been armed with the said assurance, the present petitioner left the Air-port premises. It is thereafter that the accused Nos. 1 and 3 only were left on the scene. It is alleged that while accused No. 1 came with his baggage at the baggage counter, accused No. 3 requested the Traffic Assistant Samant, who has been examined as P.W. 8 to show the excess baggage a little less by 15 Kgs. and thereafter the said two suit cases were carried by accused No. 1, as it appears that Samant was also in a obliging mood to his colleague accused No. 3. At the conveyer-belt the official of the Indian Airlines got suspicious about that baggage and, therefore, the said two suit cases were brought to the Baggage-Counter. Announcement was made in the name Paul. Accused No. 3 also went near the counter and at the instance of accused No. 3 there was a repeated announcement. After some time accused No. 1 turned up at the spot and by that time the official of the Indian Airlines had contacted the Customs Officials. The Customs Officials took accused No. 1 and the suit cases, to the Customs Office where they were opened and those repeated the existence of several watches of foreign origin, which were attached under a panchanama. Accused No. 2 was traced and finally all the three persons were arraigned as accused in the complaint lodged by the Customs Officer.

(3.) As it was treated as a private complaint, the procedure prescribed under the Code of Criminal Procedure was followed and, therefore, some evidence was led before charge, in the shape of eight witnesses to prove or to make out a prima facie case against the three accused. The bulk of the witnesses pertain to such items which could not directly involve the present petitioner in Customs, while P.W. 2 to P.W. 6 are the Customs Officials, P.W. 7 is one Mehtab Singh, who is a partner of Neelkamal Hotel, where a meeting is alleged to have occurred between accused Nos. 3 and 2 and it is at that juncture that accused No. 3 had assured to oblige accused No. 2. P.W. 8 is a Traffic Assistant Shri Samant, who was also in an obliging mood to support his colleague. This is all the evidence led by the prosecution. After all this evidence was tendered, the prosecution informed the learned Presiding Magistrate that they have closed their case so far as the stage of framing of the charge was concerned and in fact they invited charge-against all the accused persons. This, in my opinion, will have some relevance.