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1969 Supreme(Cal) 196
HIGH COURT OF CALCUTTA
Das, K. K. Mitra
SACHIDANANDA BANERJI - Appellant
Versus
MOTICHAND VERMA - Respondent
Criminal Appeal 748 Of 1961
Decided On : AUGUST 07, 1969
BEJOY BHOSE, Jaharlal Roy, N.C.BANERJI
The word 'complainant' in Section 417(3) of the Criminal Procedure Code is not used in a restrictive sense and that where the statute provides for complaint by a public servant with the sanction of his superior officer, as a condition precedent to cognizance by a Magistrate, it is the public office that counts and the successor-in-office of that officer is also the complainant within the meaning of Section 417(3) and is equally competent to file the appeal.
Headnote:
CRIMINAL APPEAL - SECTION 417(3) - CUSTOMS ACT - INTERPRETATION - SUCCESSOR IN OFFICE - COMPETENCY TO FILE APPEAL - PUBLIC SERVANT - COMPLAINANT - MEANING AND SCOPE - DISTINCTION BETWEEN PRIVATE COMPLAINANT AND COMPLAINT BY PUBLIC SERVANT - AUTHORITY TO LODGE COMPLAINT - SECTION 187(A) - SECTION 192, PROVISO (AA) - SECTION 20, PREVENTION OF FOOD ADULTERATION ACT - CONSENT FOR PROSECUTION - INTERPRETATION - SCOPE AND PURPOSE - SPECIFICATION OF COMPLAINANT'S NAME NOT A STATUTORY REQUIREMENT - APPEAL BY SUCCESSOR TO COMPLAINANT HOLDING OFFICE - MAINTAINABILITY OF APPEAL.
Fact of the Case:
The respondent, Moti Chand Verma, was convicted under Section 167(81) of the Sea Customs Act for possessing 261 wristwatches concealed in a false bottom of a record player upon his arrival at Dumdum Airport from Singapore. He appealed the conviction, and the Additional Sessions Judge acquitted him, finding that the prosecution failed to prove that the record player was part of his luggage. The Assistant Collector of Customs, Sachidananda Banerjee, filed an appeal against the acquittal.
Finding of the Court:
The High Court held that the prosecution had proved beyond reasonable doubt that the respondent was in possession of the record player containing the smuggled watches. The Court found that the respondent's defense that the record player was foisted upon him by customs officers was not credible. The Court also rejected the respondent's argument that the delay in producing him before a Magistrate after his arrest violated his statutory rights.
Issues: 1. Whether the respondent was in possession of the record player containing the smuggled watches? 2. Whether the prosecution had proved its case beyond reasonable doubt? 3. Whether the respondent's defense was credible? 4. Whether the delay in producing the respondent before a Magistrate after his arrest violated his statutory rights? 5. Whether the Assistant Collector of Customs, Sachidananda Banerjee, was competent to file the appeal against the acquittal?
Ratio Decidendi: 1. The Court found that the prosecution had proved beyond reasonable doubt that the respondent was in possession of the record player containing the smuggled watches. The Court relied on the testimony of several responsible witnesses, including customs officers and the respondent's own admission in the baggage declaration inventory that he claimed the record player as his baggage. 2. The Court held that the respondent's defense that the record player was foisted upon him by customs officers was not credible. The Court found that the evidence overwhelmingly supported the prosecution's case and that the respondent's explanation was an afterthought. 3. The Court rejected the respondent's argument that the delay in producing him before a Magistrate after his arrest violated his statutory rights. The Court found that the delay was not unreasonable and that there was no evidence that the respondent was prejudiced by the delay. 4. The Court held that the Assistant Collector of Customs, Sachidananda Banerjee, was competent to file the appeal against the acquittal. The Court found that the word 'complainant' in Section 417(3) of the Criminal Procedure Code is not used in a restrictive sense and that where the statute provides for complaint by a public servant with the sanction of his superior officer, as a condition precedent to cognizance by a Magistrate, it is the public office that counts and the successor-in-office of that officer is also the complainant within the meaning of Section 417(3) and is equally competent to file the appeal.
Final Decision: The High Court set aside the order of acquittal and restored the order of conviction and sentence passed by the Magistrate. The respondent was sentenced to rigorous imprisonment for three months.
( 1 ) THIS is an appeal against an order of acquittal passed by a learned Additional Sessions Judge setting aside the order of conviction passed by a learned Magistrate, Alipur.
( 2 ) THE prosecution case is as follows :
( 3 ) ON June 19, 1959 at about 3 P. M. the respondent Moti Chand Verma arrived at Dumdum Airport by Quantas Aircraft as a passenger from Singapore. For customs checking, he was taken to the customs enclosure, where the belongings were searched by the customs staff. During the search, the customs officers found that there was false bottom in the record player in his possession. This was opened and underneath was found concealed 261 wrist watches, valued at about Rs. 7630, for which 100% duty was chargeable. A complaint was filed in Court against him by the Assistant Collector of Customs and he was convicted under Section 167 (81) of the Sea Customs Act.
( 4 ) THE defence was a plea of innocence, upon denial that he was carrying the record player with him. He alleged that the record player was foisted upon him by the customs officers.
( 5 ) THERE was an appeal against the order of conviction and the learned Additional Sessions Judge found that prosecution failed to prove that the record player was part of bis luggage and, he therefore set aside the order of conviction and acquitted him. This appeal is directed against the order of acquittal.
( 6 ) AT the outset, Mr. N. C. Banerjee learned Advocate for the respondent raised a preliminary point of objection regarding maintainability of the appeal, as the right to appeal against an order of acquittal is available to the complainant only. The complainant, before the Magistrate was R. C. Misra, Assistant Collector of Customs and this appeal is filed by his successor in office Sachidananda Banerjee, Assistant Collector of Customs and Mr. Banerjee argues that Sachidananda Banerjee, although successor in office as Assistant Collector of Customs, is not the complainant within the meaning of sub-clause (3) of Section 417 of the Criminal P. C. , and as such, this appeal is not competent, Mr. Banerjee has also argued on merits and supported the view taken by the appellate Court.
( 7 ) BEFORE we take up the preliminary point, we propose to deal with the merits of the case viz. , whether the respondent had the record player as part of his baggage while travelling by air from Singapore. Recovery of the diamonds has not been challenged and has been proved by the evidence of a number of responsible witnesses, On this point two important pieces of evidence are the testimony of P. W. 8, Mrs. Grey, employee under B. O. A. C. who actually escorted the respondent to the customs enclosure for examination of the baggages and the respondent's own admission in the baggage declaration inventory Ex. 2, where he claims the Record, player purchased at Singapure as his baggage. Mrs. Grey stated in her evidence that respondent disembarked from Quantas plane and was carrying the record player Ex. II himself while a porter was carrying his suitcase, Ex. I. She took him to the custom's enclosure for examination of baggages and the inventory was signed by her. In cross-examination she asserted that the respondent did not carry any hand bag with him when she conducted him and that he was carrying a record player. Evidence of P. W. 8 finds corroboration from the evidence of P. W. 1, Mr. Lobo, Preventive Officer, Customs House, Calcutta. He stated that when respondent came to Customs House, he supplied him with the declaration form Ex. 2 and the respondent himself filled it up. He was then asked by the Air Port Inspector Mar-celline to search the baggage and he did it in presence of two witnesses, Mrs, Grey and Panna De, besides Mr. Marcelline. He searched the suitcase Ex. I and then the record player Ex. II, which was locked. He opened it with a key supplied by respondent and suspected a false bottom. On removing the venesta wood floor he found 261 wrist watches. A search list was pre
