MAKAR ROUT Vs. UNION OF INDIA

JUDGEMENT

(1.) This revision is preferred by the accused -petitioners against the judgment of the Session Judge, Cuttack in Criminal Appeal No. 19 of 1983 dated 30.8.1983 confirming the order of conviction and sentence passed against them by the Additional Chief Judicial Magistrate, Cuttack in 2(c)CCNo. 54 of 1981.

(2.) THE gist of the prosecution case is that on 28.2.1981 at Patrika Mahal, in Paradeep Port, the Customs Officer searched the house of the accused -petitioner and recovered contraband articles such as 13 bottles of whisky, etc., and on the basis of such recoveries proceeding was initiated against them under Section 135 of the Customs Act. - -

(3.) THE prosecution has examined, in all, 4 P.Ws. to prove its case. P.W. 2 is the Superintendent of Customs and P.Ws. 1 and 3 are Inspectors of Customs. P.W. 4 is a teacher and he is examined as an independent witness. The evidence of P.Ws. 1,2 and 3 shows that on 28.2.1981 they searched the house of the accused persons on the strength of the search warrant issued by the Assistant Collector, Customs, Paradeep; and recovered from their house 13 bottles of whisky, 98 packets of cigarettes and two bottles of perfumes, which were all contraband foreign articles. The above evidence of P.Ws. 1,2 and 3 that from the house of the accused persons they recovered on 28.2.1981 contraband articles such as foreign liquors, etc., was corroborated by the evidence of P.W. 4 as well. One of the arguments advanced by the learned counsel for the petitioners is that there is no acceptable evidence to show that the house in question was actually under the occupation of the petitioners. The said argument merits no consideration, as there is reliable evidence to show that accused Surendra was present in the house at the time of the recovery of the contraband articles and moreover, the wife of accused Makar was also present in the house at the relevant time. That apart the identity cards of accused Makar Rout and Surendra Rout (Exts. 3 and 3/1) issued by the Paradeep Port Trust were also seized from their house and this is a strong circumstance which goes a long way to show that the petitioners were the occupants of the house in question. It is in the evidence of P.W. 4 that the room, from where the contraband articles were seized, was interconnected with a cabin adjoining the road and from this evidence the petitioners pleaded that the room in question was also in the occupation and possession of the owner of the said cabin. The said plea of the petitioners is neither valid nor tenable in view of the reliable positive evidence of P.Ws. 1 to 3 that the contraband articles were recovered from the house of the petitioners. Admittedly D.W. 1 works with the accused persons in the same dock. He claims to be present at the time of the search of the house but he states that he did not go inside the house which was searched and that he cannot say what articles were recovered from the house on search and from which room the articles were seized. The nature of the evidence of D.W. 1 is such that no reliance can be placed on him when he stated that there was a narrow passage connecting the shop of one Bhimson Sahu with the house which was searched by the staff of the customs department. Hence, it is seen that the evidence of P.Ws. 1, 2 and 3 that the contraband articles were seized from the house of the petitioners was not shaken in cross -examination.