ABDULLAH Vs. STATE

JUDGEMENT

(1.) This is an appeal by Abdullah, Hussain, Hakim and Gazi, against an order of the Commissioner Excise and Taxation, Rajasthan, dated 9.6.1955, in a case under sec. 114(35) of the Marwar Custom Act, whereby the order of the Collector, Jalore, dated 26.11.1954, acquitting the appellants of the offence charged with was set aside and the appellants were ordered to pay a sum of Rs. 2806/ - by way of penalty equivalent to the amount of custom duty.

(2.) We have heard the learned counsel appearing for the parties and have examined the record at length. The case for the prosecution is that the accused intending to export a herd of sheep and goats without payment of prescribed customs duty, started form their village Khoka and avoiding customs outposts in the way would have succeeded in their act but that a party of customs employees having got scent of the affair intercepted them in the way whereupon the accused proceeded to Panchola outposts and offered to pay export duty. The Official -in -charge of the out -post deferred further proceedings till the following day on the ground that the duty would be realised only after counting the heads of the flock. In the night, however, the Inspector Customs appeared on the scene and directed Nakedar to abstain from realising the export duty. An enquiry was held by him under sec. 114(35) Marwar Customs Act and as he was of the opinion that the magnitude of the offence demanded the imposition of a penalty which was beyond his power, he submitted the case to the Collector, Jalore The Collector, Jalore, by his brief order held that there may have been a plan to smuggle goats etc. but that was frustrated by the timely action on the part of Nakedar Panchola. He acquitted the accused. The learned Commissioner reversed this decision on the ground that the export duty was paid after the commission of the offence and as the accused had started along with their herd with the intention of evading custom duty they were guilty of the offence. It is significant to note in this connection that this finding as regards the intention of the accused has been based by the learned Commissioner entirely upon the statements given by the four accused before the Inspector. No reference has been made to the evidence led by the prosecution or the material discrepancies that exist therein. We propose to deal with them in this judgment.

(3.) We would like to observe that the procedure prescribed by sec. 111 of the Act for enquiries into offence under the Act was not at all observed in the case. As laid down in sub -sec. (3) the Customs Officer was bound to state the facts constituting the offence and to ask the accused if he admitted the commission of the offence. The accused were examined on 3.6.1953 and the statement of every one of them begins thus - -"In reply to the question put to me I state that............" What was the question that was put to the accused has not been placed on record and hence it cannot be said that the facts constituting the offence were stated to them. It has been argued by Shri Bapna before us that the accused committed an offence under sec. 114(35) inasmuch as they while intending to carry export dutiable goods from a place in Marwar for export to foreign territory failed to obtain a Rawanna from the customs post en -route and got the Rawanna from the customs post of exit. The conviction of the accused is under sec. 114 (35;. It is thus doubtful as to what facts constituting the offence were stated to the accused and what charge they were required to meet in the enquiry. The statements made by the accused were evidently not construed as an admission of guilt and the enquiry officer considered necessary to record the evidence for the prosecution. It is not clear from the record as to whether the statement of the prosecution witnesses were recorded in the presence of the accused or that they were given an opportunity to cross -examine them. As provided in sec. 111 sub -sec. (5)(i) and (ii) the Customs Officer was bound to take all evidence in the presence of the accused person. After the close of the prosecution evidence he was bound to enquire from the accused as to whether he had anything to say in his defence or whether he wanted to lead any evidence in his defence. There is nothing on the record to show that after the close of the prosecution evidence the enquiry officer asked the accused to offer explanation for things that may have appeared against them in the evidence, or that the accused were given a chance to lead their defence evidence This so called procedure adopted by the Coustom Officer is clearly against the provisions of the law and would be enough be to vitiate the proceedings conducted against the accused. The Act authorises the prosecutor to function as the judge in his own cause and to ensure a fair and detached enquiry, the necessity of scrupulously following the prescribed procedure cannot be over emphasised. There has been thus no proper enquiry in the case and accused are entitled to the benefit of the same.