TaxTMI 
TaxTMI 
2019 (12) TMI 73
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....against accused no.1 is separated as per the Court's order dated 4.6.2002 because accused no.1 has not been traced. Therefore, I heard the learned Counsel for the appellant as well as counsel for accused no.2 and counsel for accused no.3 and in view of the conclusions I have arrived at as noted below, I decided to dispose the appeal as against accused no.1 without requiring his presence. 3. Appellant had filed a private complaint against the three accused on the allegations that on 15.11.1994 the three accused tried to board a Cathay Pacific Flight no.CX-750 bound for Bangkok with foreign currency concealed either in their baggage or on their person for which they did not give any account and by virtue of having acquired the possession, carrying, concealing and removing foreign currency and Indian currency the accused knew or had reason to believe that those currencies were liable to be confiscated under the Customs Act 1962. Accordingly, the accused were charged for offences punishable under Sections 120-B of Indian Penal Code read with Section 135 (1) (a) read with section 135 (1) (ii) and 135 (1) (b) of the Customs Act 1962. 4. Evidence was led before charge of three witne....
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....ry inquiry, admitted concealing of foreign currency either in the baggage or on their person in the presence of panch witnesses. According to the complainant, since the place at the Air port was not suitable for thorough examination of these persons, they escorted these three persons along with their baggages to the Customs (marine & preventive) office situated at Everest House at Marine Lines, Mumbai (City office). Thereafter two panchas were called and in their presence the accused were asked if they were carrying any foreign currency illegally and all of them admitted saying they are carrying foreign currency in their luggage or on their person. Thereafter in the presence of panch witnesses the baggage of accused no.3 which consisted of one suitcase and one carry bag were checked. The officer discovered small paper rolls wrapped in cellophane tapes, concealed in the hollow portion of handles of shaving razor and hair brush in the carry bag. When the rolls were opened it was found to contain foreign currency of different countries in different denominations. Officers thereafter cut open the strips at the outside of the suitcase and found small bits of paper wrapped in cellopha....
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....s is G.L.Sakpal the panch witness. Number of documents and articles were filed and exhibited. Total of 27 documents/articles were produced and they were marked as Exh.P-1 to Exh.P-27. Exh.P-22 and Exh.P-23 were initially marked as article X-1 and X-2 but later were received in evidence. 11. It is the case of the prosecution that from the statement recorded under Section 108 of the Customs Act all the accused had admitted that they have visited foreign countries and they used to carry foreign currencies. The statements were recorded in English, have been signed by the accused and counter signed by a Gazetted officer. Further statement of accused no.1 was recorded in which he is stated to have admitted that he used to make about Rs. 15,000/- per trip as profit. It is alleged that accused no.1 was also convicted earlier in another attempted illegal export of foreign currency case. 12. All the accused were arrested and remanded to judicial custody and after getting sanction for taking cognizance under section 125 of the Customs Act (Preventive), Bombay, the appellant had, on 13.6.1995 filed complaint against all the accused. 13. The defence attacked the evidence of all the 5 w....
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....cused and when the accused were proceeding towards the Air craft, after they entered the check post, the accused were apprehended. From the way the complaint has been filed, the evidence given and the answers given in cross-examination, the spot of apprehending the accused appears to be post completion of immigration formalities and before the boarding air craft. It is the case of the prosecution that after checking in "when the accused were proceeding towards the air craft". If it was before the immigration prosecution would have said accused were proceeding towards the immigration counter. It is certainly after checking in because prosecution has produced 3 boarding passes of all the 3 accused and also the passports. In his cross-examination PW-1 was asked by the counsel for accused no.1 by showing to PW-1, copy of the boarding passes and the passport as to whether there are any endorsements on the boarding passes or the passport made by the immigration authorities and PW-1 has said that there was no departure stamp on the boarding passes or the passport of the 3 accused on 15.11.1994. This has a very serious implication because if it is the case of appellant that if accused were....
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.... he was called by the officer to be a panch witness. PW-5 states he was never sitting with other panch witness Shetty (who was not examined) in a nearby hotel having tea but when he was called to the city office, the other panch witness was already sitting there. PW-5 has also deposed that when he was called, he found 3 or 4 leather bags lying on the table inside the city office. The bags were opened by the officer and when opened, he found some currency notes, razors and pickle bottles and papad in the bags. Curency notes were visible. It is not the case of the prosecution that the currency notes were kept openly in the bags for any one to see but were concealed in pouches, razor and hair brush. He further said some foreign currency notes were concealed under shirt collars of the accused which accused were wearing, but it is not the case of the prosecution that they also found foreign currency notes concealed inside the shirt collar of the accused. All these raises a doubt that the panch witness is a got up witness and he has not seen anything about the seizure of currency notes from the possession of the accused. In fact, panch witness has also admitted in the cross-exam....
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.... both the panch witnesses. The statement has been prepared by the prosecution and it is supposed to have been read over and explained to the panch witnesses. PW-5 who is the only panch witness who has been examined, has made it clear that he did not understand English and I would have expected the prosecution to produce other panch witness Shetty to bolster their case instead of producing PW-5. These currency notes seized have not been produced before the Court. According to prosecution these notes were deposited with the Reserve Bank of India as per Exh.P-22 and Exh.P-23. If one considers Exh.P-22 & Exh.P-23, it does not mention from which accused what currency was found or the currency being deposited by the Customs Department with the Reserve Bank of India are the same foreign currency which have been confiscated or found in person of the 3 accused. (viii) PW-2 has stated that after he interrogated accused nos.1 & 2 in Hindi to which replies were given in Hindi, he dictated to one of his officer the statement made by accused no.2 in English. According to him after recording statement, it was read over and explained and accused no.2 had signed the statement. The statemen....