TaxTMI 
TaxTMI 
2010 (7) TMI 693
X X X X Extracts X X X X
X X X X Extracts X X X X
....es, when the respondent reported at the Customs Counter, he was asked by a uniformed customs officer as to whether he was carrying any foreign currency or contraband goods, to which he replied in the negative. As he was proceeding towards the security hold area, he was stopped by a customs officer in plain clothes, Sh. Y.S. Rawat (PW1) and was asked whether he was carrying any unauthorized foreign currency or narcotic drugs, to which he replied in the negative. At this stage, two independent witnesses were called and the respondent was again asked whether he was carrying any unauthorized foreign currency or narcotic drugs, to which he again replied in the negative. But as the customs officers were dissatisfied with his reply, a notice under Section 102 of the Act (Ex. PW1/C) was served upon the respondent. The respondent gave his no objection in writing by stating that search could be conducted by any customs officer. The checked in baggage and hand baggage of the respondent were searched thereafter. One brown coloured leather purse was recovered from the briefcase of the respondent, which revealed 11000 US Dollars and Indian currency worth Rs. 6,500/-. As the respondent could not ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y PW1, who corroborated the contents thereof in his testimony. It was canvassed on behalf of the petitioner that retraction of the statement made by the respondent under Section 108 of the Act, was of no value as he had failed to prove the fact that the said retraction was made for valid reasons and in these circumstances, the confession made by the accused under Section 108 of the Act alone was sufficient to indict him, without any corroboration, though in the present case, the said statement was corroborated by both, by PW1 and PW2, as also the Panchnama. Counsel for the petitioner relied on the provision of Sections 58 and 106 of the Evidence Act and contended that as it was within the special knowledge of the respondent alone that he was carrying foreign currency, the burden of proving that the same was duly declared by him, lay at his door. In support of his submissions, counsel for the petitioner relied upon the following judgments:- (i) K.I. Pavunny v. Assistant Collector (Head Quarter), Central Excise Collectorate - 1997(3) SCC 721 = 1997 (90) E.L.T. 241 (S.C.) (ii) M. Prabhulal v. The Assistant Director, Directorate of Revenue Intelligence - 2003 (3) JCC 1631 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nbsp; Chandigarh Administration, Chandigarh v. Dharam Singh - AIR 1985 SC 1671 (vi) Abid Malik v. Union of India & Anr. - 2009 V AD (Delhi) 749 (vii) Directorate of Revenue Intelligence v. Moni - 2010 (252) E.L.T. 57 (Del.) (viii) NCB v. Aziz Ahmad - 2010 (1) JCC (Narcotics) 6. 6. This Court has heard the counsels for the parties limited to the aspect of grant of leave to appeal and has considered their respective submissions in the light of the judgment rendered by the trial court and the judicial pronouncements on the points raised. 7. To take the last point first, as to the scope of interference in an appeal against acquittal, the principles are now well settled. While the courts have consistently recognized the right of the appellate court to review the entire evidence and come to its own conclusion, it can, however, not be forgotten that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principles of criminal jurisprudence that every person should be presumed to be innocent unless ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....v. State of Maharashtra - 1973 Crl. L.J. 1783; K. Gopal Reddy v. State of A.P. - 1980 Crl. L.J. 812, Ramesh Babulal Doshi v. State of Gujarat - 1996 Crl. L.J. 2867; and has been echoed down the years, to find mention in the cases, Allarakha K. Mansuri v. State of Gujarat - 2002 Crl. L.J. 1489; Bhagwan Singh v. State of M.P. - 2002 Crl. L.J. 2024; Harijana Thirupala v. Public Prosecutor, High Court of A.P. - 2002 Crl. L.J. 3751; Ramanand Yadav v. Prabhu Nath Jha - 2004 Crl. L.J. 640; Kallu v. State of M.P. - 2006 Crl. L.J. 799; Chandrappa & Ors. v. State of Karnataka - 2007 Crl. L.J. 2136 and lastly, in Ghurey Lal v. State of UP - (2008) 10 SCC 450. 9. In the case of Chandrappa (supra), the general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal, as culled out from the aforesaid judgments, were summarized, in the following words:- "(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... under Section 102 of the Act given by PW1 to the accused as also drawing of the Panchnama of recovery and seizure had also been proved in accordance with law. But it was observed in the judgment that it was an admitted case of the parties that the independent witnesses to the Panchnama were not examined by the petitioner despite opportunities being granted in this regard, there was no corroboration to the testimony of PW 1 on the aspect of seizure, and the department had failed to identify, cite or produce the uniformed customs officer as a witness, who had first intercepted the accused at the customs counter, where he was asked as to whether he was carrying any foreign currency or contraband goods. While referring to the testimony of PW 1 and PW2, the learned ACMM noticed that initially, the accused had been stopped and asked to make a declaration by a uniformed customs officer and despite the said fact and the fact that PW 1 admitted in his cross-examination that though had met the said officer on a number of occasions even after the incident, he had not been cited by the Department as a witness in the present case. In these circumstances, the trial court concluded that the peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tly, it was held that as the case of the petitioner was that the accused had attempted to evade the prohibition imposed on the export of foreign currency, it was necessary for it to place on record the details of such prohibitions to ascertain and determine the extent of the attempted evasion, which was not done. In these circumstances, it was held that the prosecution had failed to prove and substantiate its allegations under Section 135(1)(a) of the Act and as a result, the accused was acquitted. 13. The submission of the counsel for the petitioner that the accused retracted his confessional statement belatedly and he did not discharge the burden of proving that the said statement was obtained from him under threat, duress or promise, is to be seen in the backdrop of the facts of the case in hand. It is a well settled legal position that confession can form the basis of conviction, as held in the case of K.I. Pavunny (supra) and reiterated in the case of Rehmatullah (supra), M. Prabhulal (supra) and Kanhaiyalal (supra), but it is also true that each case has to be seen on its own facts. The judgment in the case of K.I. Pavunny (supra) relied upon by the counsel for the peti....
X X X X Extracts X X X X
X X X X Extracts X X X X
....or officer of PW1 and stated in her cross-examination that she was not aware of the fact that the seizing officer had taken out the currency from the departure hall for the purpose of weighing. Pertinently, neither of the two independent witnesses to the Panchnama were examined by the Department, despite opportunities given to it and most materially, there was no corroboration of the testimony of PW1 on the aspect of seizure. Lastly, the absence of the name of the uniformed customs officer, who first intercepted the accused at the customs counter and questioned him as to whether he was carrying any foreign currency and contrabands in the list of witnesses and failure on the part of the Department to produce the said officer in evidence, despite a specific admission by PW1 in his cross-examination that he had met the said officer on a number of occasions even after the incident and was well aware of his identity, were all factors which weighed with the court below, to acquit the respondent. 16. The contention of the counsel for the petitioner that the "proper officer" in relation to Section 77 of the Act could even mean PW1 and it was not necessary for the Department to have p....