TaxTMI 
TaxTMI 
1979 (3) TMI 201
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.... Dahanu. 3.    S.M. Kelkar Sub-Inspector, Central Excise and Customs, Dahanu. 4.    A.R. Alli Sub-Inspector, Central Excise and Customs, Tarapur 5.   M.M. Keer, Sepoys, Central   Excise and Customs, Dahanu. 6.    M.C. Nikam. TABLE II 7. S.B. Kurudkar Sepoys, Central Excise and Customs, Tarapur. 8. D.B. Pednekar 9. Y.S. Sawant, 10. J.V. Pujare 11. B.S. Cavas. TABLE III 12.    Y.G.Ambhire Fisherman and Mason at Dhakte-Dahanu. 13.    Indur T. Dadlani Trader in Textiles, 27, Everest, Peddar Road, Bombay. 14.    Fakira Mahamed Dealer in ready-made garments, Room No. 10, 2nd Lane, Kamathipura, Bombay. This classification would now show that accused Nos. 1 to 3, 5 and 6 are officials of the Central Excise and Customs Department stationed at Dahanu while those in Table II are officials of the same category stationed at Tarapur. Table III, on the other hand, contains the names of three non-official hailing from Dhakte,....
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....ated thus. Indur Dadlani (accused No. 13) travelled from Bombay to Dubai on the 5th February 1967 by air (vide documents exhibits 72 and 107). Eleven days later, i.e., on the 16th February 1967 he flew from Baharin to New Delhi (vide document exhibit 76). On the next day, Ramchandani (P.W.1.) who was then working as Rummaging Inspector, Town Intelligence, Customs Department, Bombay, received secret information to the effect that the two air journeys undertaken by accused No. 13 were made with the object of smuggling foreign goods into India and that such goods consisting mainly of textiles, medicines and watches valued in all at about Rs. 20 lakhs were to be brought to India by sea during the next few days. The informant promised to secure further details and convey the same to Ramchandani (P.W.1.) All this information was recorded by Ramchandani (P.W.1.) in document exhibit 29. 8. On the 1st of March 1967 the informant visited Ramchandani (P.W.1) again and told him that smuggled goods were to arrive near Poisar and would be transported from there in a truck. Ramchandani (P.W.1) contacted the Assistant Collector of Customs Mr. Ganguli (P.W.2) and the two of them accompanied....
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....d in the negative, and produced two panchanamas prepared in connection with the seizure. Shortly afterwards it was noticed that some packages were lying in the hall where Ganguli (P.W.2) was talking to accused No. 1. On an enquiry from Ganguli as to whether those packages formed part of the haul, accused No. 1 replied that That was not so and added that all the seized goods had been deposited in the muddemal room. At this juncture, Ganguli (P.W.2) wanted to have a look at the seized goods and accused No. 4 took him to the muddemal room where Ganguli was shown the 39 packages. Ganguli (P.W.2) then enquired from accused No. 1 about the reason for the presence of unattached packages lying in the hall. Accused No. 1 stated that the same were meant for the use of the Customs staff including himself. 10. Ganguli's informant had further told him that accused No. 13 had despatched a truck to transport the goods, that the truck-driver had been given a sum of Rs. 50,000/- by accused No. 13, that the truck, while it was preparing to leave, was found to be in need of some repairs and that accused No. 13 had arranged to send some spare parts for it. Ganguli's suspicion having been arous....
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....d by each accused and admitted by him to have been received from accused No. 13. No such slips was however prepared by Sainani (P.W.3) while Patankar (P.W.9) prepared only five slips on each of which he scribbled the name of one of the Sepoys. All these goods were transferred in separate lots to the room occupied by accused No. 4, which was then placed in charge of a police guard. 13. Ganguli (P.W.2) contacted higher officers of the Customs and Police Departments on telephones and in response to his call, Superintendent of Police H.F. Almeida (P.W.37) and Deputy Superintendent of Police, C.B.I Bombay N.P. Rege (P.W.22) reached the Tarapur Customs House at 4.15 P.M. They were apprised of the details by Ganguli (P.W.2) whose complaint was recorded by D.S.P. Rege (P.W.22). A Panchanama of the currency notes worth Rs. 48,800/- produced by accused Nos. 1 to 11 was prepared. It was at this stage that exhibit 31 was signed by Ganguli (P.W.2) and handed over to Rege (P.W.22). Patankar (P.W.9) then made a Panchanama (exhibit 46 of the articles which accused Nos. 1 to 11 had received from accused No. 13 as part of the illegal gratification. The completion of the panchanama took quite....
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....e immediate presence of and, therefore, for all practical purposes, to Police Inspector K. T. Sainani (P.W. 11) sot hat they were hit by the mandate in Section 25 of the Evidence Act. The learned Additional Special Judge was of the opinion that although the currency notes and the goods might have been produced by the accused within the sight of Saninani (P.W. 11), the latter was then not within the hearing of the accused and the concerned Customs Officials. He also arrived at a finding that the currency notes and the goods described in exhibits 31 and 46 were received by accused Nos. 1 to 11 from accused No. 13. 17. In relation to the confessions, the High Court came to a different conclusion. It held : "According to us, the presence of the Police seems to have been procured because the Customs Officers had a lurking suspicion about the conduct and integrity of the Excise Staff. They were deliberately kept present to overawe the Excise Officers and that object seems to have succeeded. If that is so all the incriminating statements made by accused Nos. 1 to 11 either in relation to money or the goods will have to be eliminated from consideration altogether. We hold that t....
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....re. While making that attempt they could not pickup courage to say that Ganguli must have brought this money from Bombay to plant on them. If money to the tune of Rs. 48,800 was not taken by the Customs Officers with them and if we have rejected the theory of the packages containing contraband articles also carrying Indian currency notes, where did so much money come from?" 19. In view of the fact that witnesses from Varor had turned hostile to the prosecution, High Court held that there was no evidence about the number of packages which landed at the Varor seashore. However, it formed the opinion that such number was certainly much greater than 39. 20. It was in these premises that the High Court passed the impugned judgment. 21. We fully agree with the High Court, for the reasons recorded by it (and the same need not be repeated here), that the confessions attributed to the accused are hit by Section 25 of the Evidence Act and are inadmissible in evidence. But we do not see eye to eye with the High Court in the opinion it has formed with regard to the other evidence. The question is not of Ganguli (P.W. 2) having committed some errors of procedure but of h....
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....has also. There is further no reason why The goods, which accused Nos. 1 and 4 to 11 confessed to have received from accused No. 13 as part of illegal gratification were not made the subject-matter of a panchanama on the morning of the 3rd of March 1967 and why the preparation of the panchanama was postponed till the arrival of senior officers of police. In the circumstances we are of the opinion that exhibits 31 and 46 cannot from, all by themselves, a basis of the conviction of any of the accused and, on the other hand, must be ignored along with the related oral testimony of Ganguli (P.W. 2) and other witnesses for the prosecution, by reason of the suspicion attaching to them as documents not reliable enough for proof of the fact that the currency notes and the goods described in them were produced by accused Nos. 1 to 11 and in the circumstances put forwarded by the prosecution in that behalf. 22. The High Court appears to have acted on documents exhibits 31 and 46 not so much because of their intrinsic worth but mainly for the reason that the defence version was regarded by it as a fantacy. It thought that the contraband articles lying unaccounted for in various places....