TaxTMI 
TaxTMI 
TaxTMI 
2020 (10) TMI 757
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.... on the file of the Additional Chief Judicial Magistrate (Economic Offences) Court, Ernakulam. The above complaint was lodged against the respondent herein alleging offences punishable under Sections 132 and 135 of the Customs Act. 2. The case of the complainant is that on 17.11.1994 at 8.15 a.m., the Superintendent and party, Air Intelligence Unit, Karipur intercepted the accused at the exit gate of the Import Baggage Hall after customs clearance through green channel. To the question whether he was carrying any gold, it is the case of the complainant that he replied in the negative. On the reasonable belief that he was carrying undeclared gold, the officers searched his person and baggage in the presence of independent witnesses. His bag....
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....the Customs Act and he was acquitted under Section 248 (1) Cr.P.C. Hence, this appeal. 5. Heard the Special Prosecutor Sri. Salish Aravindakshan and the counsel for the accused. 6. The point for consideration in this appeal is whether the acquittal order passed by the trial court is correct or not. 7. Altogether 6 witnesses were examined on the side of the complainant. PW1 is the Intelligence Superintendent of Customs. PW2 is the intelligence officer who prepared Ext.P2 seizure mahazar. PW3 is the Indian Airlines Traffic Superintendent intelligence officer who prepared Ext.P2. PW4 is the Security Assistant Indian Airlines who witnessed the seizure. PW5 is the Chemical examiner who assayed and issued Ext.P14 assay certificate. PW6 is the ....
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....a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not". 41. Recently, in Kallu v. State of M.P., this Court stated; (SCC pp.317-18, para 8) "8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evi....
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....d and with the reply given by the accused, the body as well as the baggage possessed by him were examined in the presence of P.W.3 and P.W.4. On examination of the plastic carry bag, there found out a hand bag wherein he found out 42 gold biscuits covered in a cellophane tape. On search of the body of the accused, he recovered 3500 American dollars from the pocket of his shirt worn by him. Since he was not in possession of any documents for carrying those contraband articles, they were seized by preparing Ext.P2 seizure mahazar. It is an admitted fact that the accused was having the amount for remitting the customs duty for the gold biscuits brought with him. It may be noted that gold was not a prohibited item under Section 123 of the Custo....
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....cuits he brought and he was not aware of the importance of the green channel through which he was proceeding so. He had no intention to evade tax in any manner. 11. It is also pertinent to note that the prosecution has not produced the adjudication order passed against the accused in this case. It is the case of the defence that the gold was ordered to be given back to the accused in revision, on payment of custody duty. But the prosecution has not produced any adjudicating order and P.W.1 is not aware of this aspect. It is also to be noted that while the accused was in custody, he had given a retraction statement to the Collector of Central Excise and Customs. But the said statement was not produced by prosecution. The retraction statem....