IMPORTANT POINT
The obligation to declare baggage contents under Section 77 of the Customs Act is crucial in determining the offense of attempting to evade customs duty.

JUDGMENT :

This is an appeal filed under Section 378(4) of the Code of Criminal Procedure, 1973 (Code).

2. The appellant initiated prosecution against the respondents by filing a complaint before the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. In C.C.No.45 of 2001 thereby instituted, respondents were tried on a charge for the offence punishable under Section 135(1) (ii) of the Customs Act, 1962. The learned Magistrate acquitted the respondents.

3. The allegations levelled against the respondents were as follows:

On 21.12.1999, the respondents, who are brothers, arrived from Sharjah by Indian Airlines flight at International Airport, Karipur at about 9.00 a.m. After collecting their registered baggage, they proceeded through Green Channel. On suspicion, they were intercepted near the exit gate. On examination of the baggage of the 1st respondent three cartons each containing 5.5 kgs. of white power with label “OMO stain remover powder” were found. The baggage of the 2nd respondent contained two such cartons. The said articles were found in the chemical examination to be 'Dexamethasone'. Since the respondents did not declare import of the said articles and attempted to evade customs duty, they have committed the offences under Sections 132 and 135 of the Customs Act.

4. After recording evidence under Section 244 of the Code, a charge for the offence punishable under Section 135(1)(ii) of the Customs Act was framed. The respondents denied the accusation. The prosecution has examined PWs.1 to 8 and proved Exts.P1 to P17. During examination under Section 313(1)(b) of the Code, the respondents denied the incriminating circumstances appeared against them in evidence. They maintained that there was no suppression, misinformation or attempt to evade duty. The 1st respondent gave evidence as DW1. The trial court, after considering the evidence on record, found the respondents not guilty. It was held that the evidence of PW1, the detecting officer, was insufficient for a conviction, inasmuch as there was total lack of independent corroboration. The delay in preparing the mahazar and the incongruity arose on account of the failure to seize the articles soon after noticing the non-declaration were the other reasons to discard the evidence of the prosecution. Also, Exts.P7 and P8, the statements of respondents recorded under Section 108 of the Customs Act were found to be incomplete and unreliable.

5. Heard the learned Special Public Prosecutor for the appellant and the learned counsel for the respondents.

6. The allegations forming the basis for the charge are that the respondents brought 27.5 Kgs. of Dexamethasone, enclosed in their baggage and they went through Green Channel without making a declaration before the customs authorities with a view to evade payment of customs duty. In order to prove that fact the prosecution relies essentially on the evidence of PW1, who was the Superintendent, Intelligence, Air Customs, Karipur Airport, the seizure mahazar, chemical examination report and statement of the respondents under Section 108 of the Customs Act. Ext.P1 is the seizure mahazar, Ext.P3 is the chemical analysis report and Exts.P7 and P8 are the respondents’ statements. Of course, other attending circumstances were also placed reliance on for establishing the guilt. The trial court, however, took the view that the said evidence was insufficient to have a conviction.

7. The learned Special Public Prosecutor would submit that the trial court took such a view without adverting to the evidence in the proper perspective. Had evidence of PW1 been appreciated in a practical way, such a view could not have been taken. There was no delay in preparing Ext.P1 mahazar for, the requirement of seizure emerged only on fixing that the article was a dutiable item. It is also urged that the finding concerning Exts.P7 and P8 statements is totally misconceived. The learned Special Public Prosecutor accordingly would submit that the