B. C. Rajak, Asst. Collector of Customs, R & I(P), Bombay vs Apinos Victor and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1991 Supreme(Bom) 396

IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
B.C. Rajak, Asst. Collector of Customs, R I(P), Bombay.... Appellant.
Versus
Apinos Victor and others.... Respondents.
Criminal Appeal No. 456 of 1991, decided on 27-8-1991.
Advocates appeared :
A.R. Gupte, for the appellant.
C.M. Hirani and S.D. Lakhani, for the respondents Nos. 1 to 3.
M.R. Suryavanshi, A.P.P., for the State.

Headnote:Section 11 and 135-Seizure of huge quantity of gold from accused respondents during voyage in a ship-Inspite of deligent efforts made panch witnesses could not be examined due to their non-availability After nabbing of gold, local counterparts, of accused could not be nabbed.
       Explanation of prosecution on these aspects plausible evidence of principal prosecution witness before whom accused admitted of carrying gold truthful and corroborated by fact of recovery of substantial quantity of gold. No valid or cogent reason on record to reject his evidence. Trial Court not justified in acquitting accused by giving benefit to them.
       Section 108-Statements of accused-Retraced-Effect on value of statements-Held-Mere retraction alone not going to affect evidentiary value of statements recorded under Section 108 unless it could be demonstrated that statement was otherwise assailable.
       Section 108-Statement of accused under-Retraced immediately when accused produced before trial Court-Evidentiary value of such statements.
       Held-Mere retraction alone not going to affect evidentiary value of statements recorded under Sections 108 unless demonstrated that statement is otherwise assailable-In instant case as alleged, accused was not mercilessly assaulted and tortured by customs officers. Statements fully corroborated by seizure and not suffering from any infirmity. Trial court not justified in rejecting said statements.
       Section 135-Foreign Exchange Regulation Act, Import Control order 19/55-Section 13 (1)-Imports and Export (Control) Act-Section 5 and Penal Code, 1860-Section 120-B-Concealment of gold by three accused/respondents valuing approximately Rs. 2.66 crores-Detected by captain and other crew members who were foreign nationals on board the ship during its voyage Respondents alleged to have voluntarily admitted concealment of gold-Captain and other members not available during trial despite reasonable efforts made by custom authorities to trace and produce them.
       Held-No adverse inference by non-production of said witnesses would be justifiable-Question would still remain as to whether in absence of these witnesses charge in question had been established or not.
       EVIDENCE ACT, 1872.
       Section 2-Discovery of gold from a ship landing on part-Trial under Customs Act-Appreciation of evidence-Witnesses crew members were foreign nationals-Witnesses had gone away-Custom authorities unable to produce them despite reasonable efforts-No adverse inference would be justifiable-Question still remained undecided as to whether in absence of witnesses, charge in question had been established or not.
       Admittedly, the particular set of witnesses were crew members on the foreign ship. They are foreign nationals and the law does not permit the authorities in this country to detain the witnesses indefinitely or for any length of time merely because they were required for the trial. If the witnesses have gone away and it after making reasonable efforts, the Customs Authorities were unable to produce the witnesses, no adverse inference, would be justifiable. The question still remains as to whether in the absence of these witnesses, the charge, in question, has been established or not.

JUDGMENT - M.F. SALDANHA, J.:---This is an appeal filed by the Assistant Collector of Customs, Bombay, and is directed against the Judgment and Order of the learned Addl. Chief. Metropolitan Magistrate, Esplanade, Bombay, dated 27th May, 1991. The learned Magistrate had acquitted the respondents before this Court, i.e., the Original Accused, who stood charged with having committed offences punishable under section 120-B of the Indian Penal Code read with section 13(1) of the Foreign Exchange Regulation Act, Imports Control Order 17/55 and section 11 of the Customs Act, under sections 135(1)(a) and 135(1)(b) read with section 135(1)(i) of the Customs Act, 1962, and under section 5 of the Imports and Exports (Control) Act.

2. A few facts which are relevant for the purpose of this appeal are set out below :

According to the prosecution, a ship by name M. V. MANASLU which was on voyage from Karachi to Bombay, relayed a message from the Captain to the agents at Bombay who, in turn, informed the Customs Authorities that a certain quantity of gold had been detected on that ship. In response to this message, a party consisting of the Customs Officers boarded the ship which was leading for the Bombay docks. The said ship had earlier arrived from Karachi. There is some dispute with regard to the exact sequence of events but what emerges from the record is that Captain reiterated his earlier message by stating that certain cloth jacket belts containing gold bars were found concealed in the tins of paint situated in the storeroom of the ship. It was brought to the notice of the officers that in the course of the investigation conducted by the Captain and other crew members on board the ship when the gold was discovered, that the present three accused voluntarily came forward and admitted to the Captain and other Officers that the gold had been concealed by them. These persons are alleged to have further state that one person by name Karim is alleged to have asked these persons to carry the gold to Bombay at which place a person by name Baba was to come on board the ship and take charge of the gold. The gold was seized and investigation into the case commenced. Subsequently, the three accused were arrested and charge-sheeted before the Court and placed on trial on the aforesaid charges.

3. It needs to be mentioned, here that to some extent, a lot of reliable and cogent evidence which consisted of the statements of the Captain, as also the other crew members was not available to the prosecution at the time of trial. The learned Counsel representing the accused before the trail Court has made capital of this fact and the learned lagistrate has also taken a very serious view of the non-production of the material witnesses and had held that this is a factor against the prosecution. The learned Magistrate, in the course of his judgment, has come to the conclusion that the prosecution was unable to prove the charges to the extent which the law requires and consequently the benefit of doubt had to be given to the accused. It is against the Order of acquittal that the Customs Authorities have filed an appeal before this Court. It is necessary to record, that the gold involved in this case is valued at approximately Rs. 2.66 crores and that, to my mind, the Customs Authorities were more than fully justified in challenging the Order of acquittal. It would be advisable for the trial Court to take very strict notice of the fact that the investigating agencies are often handicapped and suffer from several limitations. Ipso facto, the benefit of any such minor or procedural shortcomings is not to result in an acquittal if the material produced, regardless of better evidence contributing to an undoubtedly better prosecution, can still sustain a conviction. The equation can never be that in serious economic offences, drugs prosecutions, and terrorist offences every little set of technical or procedural infirmities is to confer maximum benefit to the accuse

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