TaxTMI 
TaxTMI 
2011 (4) TMI 1038
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....Exhibit P.1 is the Search Warrant issued by the Assistant Commissioner. P.W.1 thereafter arranged to go for house search along with P.W.2- Jayakumar and few other Officers. Accordingly, P.W.1 proceeded to the house of the accused on 19-3-1993 at 12.00 noon. After informing P.W. 1 about his identity and his intention to search as per Exhibit P.1 warrant to the respondent/accused, he along with P.W.2 and other officials, entered into the house and made a search. P.W.4- Mr. Loganathan was then residing in the first floor of the said building. P.W.1 requested P.W.4 and another person by name Mr.Jain Babulal to be witnesses for the house search. Accordingly, they agreed. Then P.W.1 obtained an acknowledgement from the accused to evidence the search. Thereafter, P.W.1 searched the entire house. In the ground floor at the second room, they found a paper baggage. In the presence of the above two witnesses, P.W.1 and the other Officials opened the same and they found 42 gold bars each weighing 10 thollas. P.W.1 enquired the accused about the same. He told that he had no receipts for payment of customs duty for having imported the said gold bars. He also did not produce any other documents p....
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....umbering 42 which were recovered from his house belonged to one Mr. Samsudin Bin-Mohamed. He further told that Mr. Samsudin Bin-Mohamed had brought the same from Singapore on 6-2-1993 by air. He further told that Mr. Samsudin Bin-Mohamed had paid appropriate customs duty for the same. He further told that Mr. Samsudin Bin-Mohamed handed over the gold bars to him for keeping the same under safe custody for the purpose of selling the same in India. He further told that Mr. Samsudin Bin-Mohamed had left India subsequently. In respect of the silver bars he told that Mr. Mohan, Mr. Kumarasamy and Mr. Mathiyalagan referred to in the above receipts (Exhibits P.6 to P.8) had handed over the same to him along with the bills. 6. On 6-4-1993, Mr. Samsudin Bin-Mohamed appeared before P.W.1 and gave a statement. The said statement has been marked as Exhibit P.11. In the said statement, Mr. Samsudin Bin-Mohamed told that he was the owner of the 42 gold bars recovered from the house of the accused. He also told that he brought the same on 6-2-1993 from Singapore by air and also paid appropriate customs duty at the Airport. A receipt under Exhibit P.12 was also produced for payment of the ....
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....ts marked on the side of the prosecution. When the incriminating materials were put to the accused under Section 313, Cr.P.C., he denied the same. But he admitted that there was a house search made by P.W.1 and other officials from Customs Department and also the recovery of material objects. His explanation was that the gold bars were handed over to him by Mr. Samsudin Bin-Mohamed and they were already subjected to customs duty. In respect of the silver bars also his explanation was that they were all handed over by three persons namely Mr. Mohan, Mr. Kumarasamy and Mr. Mathiyalagan and they were all already subjected to customs duty. Thus, according to him, he had not committed any offence. 10. Having considered the above materials, the trial Court found that the complainant had failed to prove the case beyond reasonable doubts and accordingly, acquitted the respondent/accused. Challenging the same, the complainant is before this Court with this appeal. 11. I have heard Mr. N.P. Kumar, learned Special Public Prosecutor appearing for the appellant and Mr. B. Kumar, learned Senior Counsel appearing for the respondent/accused and also perused the records carefully. ....
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.... gold bars seized from the house of the accused. He would further submit that the description of the gold bars found in Exhibit P.12 receipt do not tally with M.O.1 series. Therefore, the finding of the trial Court in this regard is not correct. To put it otherwise, it is the argument of the learned Special Public Prosecutor that the trial Court has overlooked the acceptable evidence tendered by the prosecution by satisfying all the legal requirements and thus, the judgment of the trial Court is perverse and the same requires interference at the hands of this Court. 15. The learned Senior Counsel appearing for the respondent/accused would however refute all these allegations. According to him, the gold bars seized from the house of the accused have not been produced before the Court. M.O.1 series was not really the gold bars seized from the house of the accused. P.W.1 and the authorities have changed the gold bars so as to show that there has been some discrepancy between Exhibit P.12 and the gold bars produced in the Court. He would further submit that the statement made by the accused to the customs authority is very much admissible in evidence as an "admission" and not a....
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....rt as it is contended by the learned Senior Counsel. For this, we have to look into the evidence of P.W.1. P.W.1 even in his chief examination has clearly stated that M.O.1 series namely 42 gold bars were seized from the house of the accused. He has identified M.O.1 series, as the gold bars which were seized from the house of the accused. In cross-examination, there is no dispute at all raised by the accused disputing the said fact spoken to by P.W.1. When a specific query was made to the learned Senior Counsel as to why this fact was not disputed by the defence, the learned Senior Counsel has no answer to submit to the Court. Thus, the fact remains that there was no denial of the fact spoken to by P.W.1 that M.O.1 series namely 42 gold bars were the ones seized from the house of the accused. 20. The learned Senior Counsel would however take me through the recovery mahazar where there is no detailed description given about the gold bars which were seized from the house of the accused. He would take me through the show cause notice to show that the customs authorities improved the case by making the description of the gold bars in the said statement so as to defeat the defen....
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....al Public Prosecutor would submit that it is too late in the day for the accused now to say that M.O.1 series was not the gold bars really seized P.W.1 and other officers of Customs from his house. In my considered opinion, this statement of the learned Special Public Prosecutor cannot be considered because it is extraneous to the facts of the case. It is the fundamental principle of law that any material which is not available on record and brought to the notice of the accused under Section 313, Cr.P.C., cannot be used against him at all. As of now, I do not have any record of the confiscation proceedings and the result thereon. However, the learned Senior Counsel for the respondent does not dispute the correctness of the said statement of the learned Public Prosecutor. 25. For the foregoing discussions, I have no hesitation to hold that the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Custom....
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....e to the accused. The question now is whether this receipt has got any relevance to M.O.1 series. It is the contention of the appellant that the said receipt has got nothing to do with M.O.1 series. In order to ascertain the same, we have to look into the description of the property made in the receipt. 28. As I have already stated, except the description "SUCSSE", there is nothing else is found. It cannot be argued before this Court that the term "SUCSSE" will refer only to 42 gold bars and the same will not be referable to any other gold bars. It is not in dispute that the name "SUCSSE" is a common name which will be indicated in all gold bars which are imported from "SUCSSE". Therefore, from this description, it cannot be safely concluded that M.O.1 series are referable to this receipt. 29. Nextly, there is one person who can speak about the fact as to whether the said receipt relates to M.O.1 series or not. He is Mr. Samsudin Bin-Mohamed. It is not known as to why Mr. Samsudin Bin-Mohamed was not examined before the trial Court. In this regard, I may refer to Section 114(g) of the Evidence Act, which states that the Court may presume that evidence which could be....
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....e provisions of sub-section (1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court." 32. A reading of the above provision would go to show that only in the circumstances enumerated in the said provision, the statement recorded under Section 108 of the Customs Act, by the Customs Officer can be admitted in evidence in a criminal prosecution. In this case, it is not the case that Mr. Samsudin Bin-Mohamed is not available or that the other conditions enumerated in Section 138B of the Customs Act, are satisfied. Therefore, the statement namely Exhibit P.11 made under Section 108 of the Customs Act, by Mr. Samsudin Bin-Mohamed is nothing but a former statement which can be used either for contradicting him or to corroborate his evidence. The said statement can never be treated as substantive evidence to prove the contents of the same. Therefore, as rightly pointed out by the learned Senior Counsel, Exhibit P.11 is not at all admissible in evidence. 33. But the trial Court has relied on the said statement and recorded the acquittal of the accused on t....
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....sion." 35. As per the said provision, an admission made by an accused can be used only against him and the same cannot be used in his favour except in certain conditions enumerated in Section 21 of the Evidence Act. The learned Senior Counsel is not in a position to explain to the Court as to how the said statement of the accused is admissible in evidence. At this juncture, I may refer to Section 31 of the Evidence Act, which states that admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions. From the above provision, it is made clear that the admission can be made use of only against the maker of the statement and the same cannot be used in his favour. Thus, Exhibit P.10 is not admissible in evidence and therefore, the same cannot be admitted in evidence in favour of the accused to prove the contents of the same. 36. In respect of the silver bars also, those three persons by name, Mr. K. Mohan, Mr. Kumarasamy and Mr. Mathiyalagan have not been examined. Only their statements have been marked in evidence and they have been illegally admitted in evidence and relied on by the trial Court. If the same is esche....
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.... this appeal by special leave the appellant has been convicted under Section 135(b) of Customs Act, 1962 and sentenced to two years' rigorous imprisonment and a fine of Rs. 2000. He has also been convicted under Section 85(ii) of the Gold Control Act and sentenced to two years, rigorous imprisonment and a fine of Rs. 2000. The sentences of imprisonment were directed to run concurrently. It appears that the appellant has already spent about a month in jail and after a lapse of ten years it does not appear to be conducive to the ends of justice to send the appellant back to jail. In these circumstances, therefore, while upholding the conviction of the appellant, we would reduce the sentence of imprisonment to the period already served. In lieu of the sentence remitted we impose a fine of Rs. 15,000 under each count, total being Rs. 30,000, in default six months, rigorous imprisonment on each count. The appellant is allowed to pay Rs. 10,000 within a month from today and the balance of the amount to be paid within six months from today. With this modification, the appeal is dismissed." 40. When a specific query was made to the learned Senior Counsel as to whether for the defec....
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....s not affect the prosecution in any manner. Thus, I hold that the sanction order does not suffer from any infirmity and the same is valid. 43. Now let me turn to the last argument of the learned Senior Counsel in respect of the charges. The learned Senior Counsel would submit that the charges framed are so defective and there can be no conviction based on the said charges. In this regard, I may refer to Section 135(1)(a) and 135(1)(b) of the Customs Act :- "135. Evasion of duty or prohibitions. - (1) Without prejudice to any action that may be taken under this Act, if any person- (a) is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fradulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or (b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe ar....
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....und in the charge has given adequate particulars to the accused to defend himself effectively. The accused has never raised his finger before the trial Court alleging that there were errors in the charge which misled him. For the first time such an argument is advanced before this Court in this appeal. Therefore, I have no hesitation to reject the said argument of the learned Senior Counsel. 48. In view of the foregoing discussions, and conclusions arrived at, I have no hesitation to hold that the judgment of acquittal recorded by the trial Court is liable to be interfered with. At this juncture, I have to state that I am conscious of the fact that while sitting on appeal and dealing with an appeal against acquittal, this Court has to make a cautious approach and in a mechanical manner, the judgment of acquittal should not be interfered with. As I have already referred to, if the evidence let in before the trial Court is closely and cautiously analysed it certainly goes to establish that the accused has committed offence under Section 135(1)(b) of the Customs Act, but the trial Court has overlooked the acceptable evidence and has accepted the inadmissible evidence to record....
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....Section 135 provides that 'without prejudice to any action that may be taken under the Act', (emphasis supplied) if any person is, in relation to any goods in any way, knowingly concerned in any prohibition imposed under the Act for the time being in force with respect to such goods or acquires possession of any goods which he knows or has reason to believe are liable to confiscation under Section 111, then he shall be liable to conviction under sub-section (1) thereof and shall be liable to punishment under sub-section (2) thereof. Similarly, under the Gold (Control) Act, which was in operation at the relevant time, whoever in contravention of the provisions of that Act or order made thereunder, among other things, owns or has in his possession, custody or control any primary gold, is liable, without prejudice to any other action that may be taken under that Act, for punishment of imprisonment prescribed for the purpose. Under Section 86, whoever fails to make a declaration enjoined under sub-section (12) of Section 16 without any reasonable cause, is liable to punishment of imprisonment prescribed for the purpose. The offences are proved from the evidence. 34. Having reac....