UNION OF INDIA Vs. REMO MORGAN

JUDGEMENT

(1.) THIS appeal was filled after obtaining a special leave to appeal against an order of acquittal passed in Case No. 907 of 1968 under section 135 (b) of the Customs Act by Sri D. P. Sarkar, Presidency 'magistrate, 3rd court, Calcutta cm 13. 3. 1974. The facts of the case may briefly be stated as follows :

(2.) THAT the accused-respondent who holds an Italian Passport, came to India by Pan American Air Ways on 16. 2. 1968 through Palam Air Port at Delhi. On his arrival at Palam Air Port, the accused-respondent without declaring dutiable or restricted goods carried by him besides having some new clothings and 400 U. S. dollars with him managed to obtain clearance of his baggages from the Customs Officers at Palam Air Port and thereafter -came to Calcutta and put up at Carlton Hotel 2, Chowringhee Place, Calcutta. Thereafter, on receipt of. some information Customs officers on the strength of a search warrant on 26. 2. 68 searched the-room No. 15 of the above Hotel which was in occupation of the accused-respondent in presence of witnesses. In course of search large quantity of jewelleries and precious stones, viz. , 83 strings of coral beads, 6 pieces of gold rings set with coral, one pair of gold ear tops with coral fittings and one pair of gold cuff links all of foreign origin were found inside a suitcase and leather brief-case belonging to the accused-respondent Besides a sum of Rs. 2400/- in Indian currency of hundred rupee notes inside the leather briefcase and also some incriminatory documents indicating accounts of business transaction were found ; that ,the accused having failed to produce any valid document, such as import license and permit in support of his lawful acquisition and/or legal importation and/or possession of those articles, the Customs Officers on reasonable belief that those articles were smuggled goods liable to confiscation and that the currency notes were the 'sale proceeds of the smuggled goods seized them under proper seizure list. After obtaining requisite sanction a petition of complaint was filed in court of the Chief Presidency Magistrate, Calcutta. The learned Chief Presidency Magistrate sent the case for trial to the 15th court of the Presidency Magistrate who framed a composite charge under both the clauses of section 135 of Customs Act. The accused moved this Court against the said order of framing charge and obtained a Rule being Criminal Revision No. 842 of 1968. This Court made the Rule absolute and sent back the case for framing proper charge. On remand charge under section 135 (a ). of the Act was framed. The accused again moved this Court and obtained a Rule being Criminal Revision No. 441 of 1969. This Court set aside the charge under section 135 (a) and directed that the trial should proceed under section 135 (b) of the Act. The case came up for hearing before the 11th court of the Presidency Magistrate, Calcutta, prosecution witnesses were examined. The accused was examined under section 342 of the code. At this stage, the Board of Central Exercise and Customs by an order dated 22. 12. 71 in the appeal of the accused on the adjudication proceeding directed that the coral beads be re-exported to Italy and reduced the personal penalty imposed on the accused-respondent at the adjudication proceeding from Rs. 50,000/- to Rs. 10,000/ -. That after the order passed by the Board of Central Exercise and Customs the accused-respondent made an application before the trial court praying for acquittal. The learned Magistrate rejected the application. Thereafter, the accused filed another application stating that the Court at Calcutta had no jurisdiction to try the, case that application was also rejected. Against the aforesaid orders, the accused moved this Court for quashing the proceedings and obtained a Rule being Criminal Revision No. 117 of 1972 which was ultimately discharged by this Court. Which discharging the Rule this Court observed that the scope of an adjudication , proceeding for confiscation and penalty and that of a Criminal Proceeding are entirely different. On remand, the trial court held that the Calcutta Court had jurisdiction to try this case. The accused again moved this Court which ultimately upheld the decision of the trial court. Thereafter, the case. came up for hearing before Sri D. P. Sarkar, Presidency Magistrate, 3rd court, Calcutta. The prosecution examined as many as 10 witnesses. According to the complainant, the evidence was sufficient to convict the accused. But the learned Magistrate by his order dated 13. 3. 74 acquitted the accused. Being aggrieved, by the aforesaid order of acquittal the petitioner obtained special leave which was granted and thereafter the present appeal was filed which was admitted.

(3.) MR. Sarathi Mohan Sanyal, learned advocate appearing on behalf of the appellant, contends that the learned Magistrate was wrong in holding that the facts disclosed in evidence do not make an offence under section 135 (b) of the Customs Act. It is submitted that on the proper reading and assessment of evidence on record the learned Magistrate was wrong in not holding that all the ingredients of section 135 (b) of the Customs Act have been made out in this case. With all emphasis Mr. Sanyal urges that the learned Magistrate erred in law in holding that there is material defect in framing the charge inasmuch as the learned Magistrate failed to note that the order framing the charge was upheld by this Court. Mr. Sanyal next contends that the learned Magistrate was wrong in holding that the charge under section 135 (b) of the Customs Act was unsustainable as the Board of Excise and Customs passed an order on appeal against the order in adjudication proceedings directing re-exportation of coral inasmuch as the subsequent order of the Board has no relevance to the main ingredient of the section, viz. dealing with goods which the dealer knows or has reason to believe are liable to confiscation under section III of the Customs Act. The learned Magistrate, according to Mr. Sanyal, ought to have held as was held by this Court that the scope of all adjudication proceedings for confiscation and penalty and that of Criminal Proceedings are entirely different. It is next submitted by Mr. Sanyal that regards being had to the evidence in this case that the accused had in his possession jewelleries of foreign origin, viz. coral pieces without any permit or license, the importation of which was prohibited at the material time, the learned Magistrate was-wrong in holding ,that the accused had neither knowledge nor belief under section 135 (b) of the Customs Act.