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High Court Of Calcutta
N. C. MUKHERJI, SUDHINDRA MOHAN GUHA
CUSTOMS FOR PREVENTION - Appellant
Versus
REMO MORGANI - Respondent
Criminal Appeal 204 Of 1974
Decided On : 04/11/1980
CUSTOMS ACT - Appeal against acquittal - Maintainability - Competency of Customs Officer to file appeal - Section 135(b) - Ingredients of offence - Mens rea - Proof of valuation of goods - Admissibility of statement under Section 342 of the Code.
Fact of the Case:
The accused, an Italian citizen, was found in possession of a large quantity of jewelry and precious stones, including coral beads, gold rings, and earrings, upon his arrival in India. The items were seized by Customs Officers, and a complaint was filed against the accused under Section 135(b) of the Customs Act. The trial court acquitted the accused, and the Union of India filed an appeal against the acquittal.
Finding of the Court:
The High Court held that the appeal was not maintainable because it was not filed by the complainant, who was the Assistant Collector of Customs. The Court also held that the Customs Officer who filed the appeal was not competent to represent the Union of India, as he had not been authorized to do so. On the merits, the Court held that the prosecution had failed to prove that the goods were prohibited goods, as the valuation of the coral beads had not been satisfactorily established. The Court also held that the statement of the accused under Section 342 of the Code was admissible and could be considered in the context of the absence of proof regarding the valuation of the goods.
Issues: 1. Whether the appeal was maintainable, given that it was not filed by the complainant and the Customs Officer who filed the appeal was not authorized to represent the Union of India? 2. Whether the prosecution had proved that the goods were prohibited goods, considering the absence of proof regarding the valuation of the coral beads? 3. Whether the statement of the accused under Section 342 of the Code was admissible and could be considered in the context of the absence of proof regarding the valuation of the goods?
Ratio Decidendi: 1. The Court held that the appeal was not maintainable because the complainant, who was the Assistant Collector of Customs, had not filed it. The Court also held that the Customs Officer who filed the appeal was not competent to represent the Union of India, as he had not been authorized to do so. 2. The Court held that the prosecution had failed to prove that the goods were prohibited goods, as the valuation of the coral beads had not been satisfactorily established. 3. The Court held that the statement of the accused under Section 342 of the Code was admissible and could be considered in the context of the absence of proof regarding the valuation of the goods.
Final Decision: The appeal was dismissed.
( 1 ) THIS appeal was filed 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 Shri D. P. Sarker, Presidency Magistrate, 3rd court, Calcutta, on 13-3-74.
( 2 ) THE facts of the case may briefly be stated as follows :-That the accused-respondent who holds an Italian Passport, came to India by Pan American Air Ways on 16-2-68 through Palam Air Port at Delhi. On his arrival at Palam Air Port, the accussed-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 on 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 cufflinks 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 brief case 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 lieence and permit in support of his lawful acquisition and/or legal importation and/or possesssion 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 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 charges and obtained a Rule being Criminal Revision No. 842 of 1968. This Court made the Rule absolute and sent back for framing proper charge. On remand, charge under Section 135 (a) of the Act was framed. The accused again moved the 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 Excise 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 Excise 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 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. While discharging the Rule this Court observed that the scope of an adjudication proceeding for confiscation and
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