TaxTMI 
TaxTMI 
TaxTMI 
2021 (11) TMI 73
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....rai Bench in Criminal Appeal Nos. (MD) 58 and 59 of 2009, titled as The Assistant Commissioner, Customs Department, Tuticorin Vs. A. Dhanapal and four others as respondents in Crl.A.(MD) No. 58 of 2009 and K.M.A. Alexander as sole respondent in Crl.A.(MD) No. 59 of 2009. 3. Trial Court vide separate judgments and orders dated 23.05.2008 passed in C.C. No. 2 of 2003 and C.C. No.4 of 2004 under sections 132, 135(1)(a)(ii) read with 135A of the Customs Act 1962, had acquitted all the six accused. However, the High Court, vide impugned judgment, proceeded to record conviction of all the six accused and awarded sentence to undergo imprisonment of one year and fine of Rs. 50,000/- each and in default to undergo further six months rigorous imprisonment. It accordingly allowed both the appeals. 4. Anti-Smuggling Wing of the Customs department at Tuticorin, raided a warehouse situated at Door No. 111, Etayapuram Road, Tuticorin town on 10.03.1998 upon receipt of some specific information. In the raid, large quantities of cardboard boxes were recovered. Three persons were also present there, who identified themselves as Rahman Sait alias Nathan, Selvaraj and Sullan. Upon questioning, Natha....
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....c) With regard to section 132 of Customs Act, there are no documents on record to show that the accused forged the documents and produced the same before anybody. d) It was not proved beyond reasonable doubt that the accused, with the intention of evading customs duty under section 135 (1)(a)(ii) of the Customs Act, had attempted to export carton containing prohibited sandalwood by means of forged documents thereby causing revenue loss to the customs department and contravention of section 135A of the Customs Act. e) The case is pending before the Forest Department officials and hence this court cannot pass any order permitting customs officials under Section 126 of Customs Act either for sale or for auction. Further, the sandalwood not been deposited in the Trial Court under section 95 CrPC, therefore, it was not in the custody of the Trial Court. 9. Aggrieved by the acquittal, the Customs Department preferred two appeals before the High Court. The learned Single Judge, Madurai Bench of the Madras High Court, by judgment dated 19.10.2019 recorded conviction of all six accused under section 135(1)(a)(ii) read with 135A of the Customs Act. However, it confirmed the acquittal un....
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....nt although could not dispute the submission that evidence of only one case has been considered while deciding both the appeals, however, submitted that as the evidence in both the cases were identical, no serious error could be alleged by the appellants. He further submitted that no prejudice has been caused to the appellants inasmuch as the evidence was same in both the trials. The appellants, having failed to show any prejudice on account of the above procedure adopted by the High Court, cannot claim any benefit on technicalities. Mr. Banerjee relied upon the following judgments in support of his submission: (i) Doat Ali and Ors. vs. Mahammad Sayadali and Anr. AIR 1928 Cal 230 and (ii) Pedda Venkatapathi and Ors. vs. State AIR 1956 AP 96 16. In rejoinder, learned counsel for appellants submitted that it is true that the witnesses examined in both the cases were same and the documents filed were also the same but nevertheless the witnesses have not been examined in the same sequence and nor the documents have been proved and exhibited in the same order. In any case, the High Court ought to have discussed the evidence of both the cases separately. Maybe by a com....
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..... are reproduced below: - 205. Magistrate may dispense with personal attendance of accused. (1) Whenever a Magistrate issues a summons, he may, if he sees reason so to do, dispense with the personal attendance of the accused and permit him to appear by his pleader. (2) But the Magistrate inquiring into or trying the case may, in his discretion, at any stage of the proceedings, direct the personal attendance of the accused, and, if necessary, enforce such attendance in the manner hereinbefore provided. xxx xxx xxx 299. Record of evidence in absence of accused. - (1) If it is proved that an accused person has absconded, and that there is no immediate prospect of arresting him, the Court competent to try [, or commit for trial] such person for the offence complained of may, in his absence, examine the witnesses (if any) produced on behalf of the prosecution, and record their depositions and any such deposition may, on the arrest of such person, be given in evidence against him on the inquiry into, or trial for, the offence with which he is charged, if the deponent is dead or incapable of giving evidence or cannot be found or his presence cannot be procured without an ....
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.... all trials before a Court of Session, the evidence of each witness shall, as his examination proceeds, be taken down in writing either by the presiding Judge himself or by his dictation in open Court or, under his direction and superintendence, by an officer of the Court appointed by him in this behalf. (2) 1 Such evidence shall ordinarily be taken down in the form of a narrative, but the presiding Judge may, in his discretion, take down, or cause to be taken down, any part of such evidence in the form of question and answer.] (3) The evidence so taken down shall be signed by the presiding Judge and shall form part of the record. xxx xxx xxx 278. Procedure in regard to such evidence when completed. (1) As the evidence of each witness taken under section 275 or section 276 is completed, it shall be read over to him in the presence of the accused, if in attendance, or of his pleader, if he appears by pleader, and shall, if necessary, be corrected. (2) If the witness denies the correctness of any part of the evidence when the same is read over to him, the Magistrate or presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objectio....
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....e deemed to be a proceeding between the prosecutor and the accused within the meaning of this section. 24. In light of the statutory provisions discussed above, we now proceed to deal with position in law concerning the issue. 25. So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously. However, we are not concerned with cross-cases but are concerned with an eventuality of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding. 26. A three-Judge Bench of this court in the case of Karan Singh vs State of Madhya Pradesh AIR 1965 SC 1037 was confronted with the question, as to, whether, in view of the acquittal of the absconding co-accused in a separate trial from which there had been no appeal, it w....
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....her case to proceed on the basis--of course if the evidence warrants it that the acquitted person was guilty of the offence of which he had been tried in the other case and to find in the later case that the person tried in it was guilty of an offence under S. 34 by virtue of having committed the offence along with the acquitted person. There is nothing in principle to prevent this being done. The principle of Sambasivam's case has no application here because the two cases we are concerned with are against two different persons though for the commission of the same offence. Furthermore, as we have already said, each case has to be decided on the evidence led in it and this irrespective of any view of the same act that might have been taken on different evidence led in another case." (Emphasis added) 27. In the case of Nirmal Singh vs State of Haryana (2000) 4 SCC 41, this Court discussed the scope and requirements of section 33 of the Evidence Act, 1972 and section 299 of the Cr.P.C. and observed as follows: - "On a mere perusal of Section 299 of the Code of Criminal Procedure as well as Section 33 of the Evidence Act, we have no hesitation to come to the conclusion that....
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....ion. (See - Sarabjit Rick Singh v. Union of India, [ (2008) 2 SCC 417 ]. 25. It is also beyond any cavil that the provisions of Section 299 of the Code must receive strict interpretation, and, thus, scrupulous compliance thereof is imperative in character. It is a well-known principle of interpretation of statute that any word defined in the statutory provision should ordinarily be given the same meaning while construing the other provisions thereof where the same term has been used. Under Section 3 of the Evidence Act like any other fact, the prosecution must prove by leading evidence and a definite categorical finding must be arrived at by the court in regard to the fact required to be proved by a statute. Existence of an evidence is not enough but application of mind by the court thereupon as also the analysis of the materials and/or appreciation thereof for the purpose of placing reliance upon that part of the evidence is imperative in character." 29. In this regard, another instance of requirement of joint trial for admissibility of confession as provided under section 30 of Evidence Act, 1872 may be noted. According to which when more persons than one are being tried joi....
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....nce against the appellant. The Court held that the confession of the co-accused was not admissible in evidence against the present appellant. The Court held: "7. As recorded by the learned trial Judge, the accused Narendra Bahera, whose confessional statement had been relied upon, had been tried earlier and not jointly with the appellant and the co accused person Baina Das. A confession of the accused may be admissible and used not only against him but also against a co-accused person tried jointly with him for the same offence. Section 30 applies to a case in which the confession is made by accused tried at the same time with the accused person against whom the confession is used. The confession of an accused tried previously would be rendered inadmissible. Therefore, apart from the evidentiary value of the confession of a co-accused person, the confession of Narendra Behera was not to be admitted under Section 30 of the Evidence Act against the present appellant and the co-accused Baina Das." We are in complete agreement with the view of the High Court. 33. We are of the view that since the trial of the other two accused persons was separate, their confession statements ....
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....of 1998. The Evidence Act, 1872 does not permit such a mode of proof of any fact barring in exceptional situations contemplated in Section 33 of the Evidence Act. 48. There is no material on record to warrant the procedure adopted by the Sessions Court. On that single ground, the entire trial of Sessions Case NO.58 of 1998 is vitiated and is not in accordance with procedures established by law. It is a different matter that both the accused put to trial in Sessions Case No.58 of 1998 were acquitted by the Fast Track Court and the High Court did not interfere with the conclusions recorded by the Fast Track Court." 33. Mr. Vikramjit Banerjee, learned Additional Solicitor General, as an officer of the Court, has referred to two judgments. According to him, in both the said cases, the evidence considered of another case was different and not part of the other case. He, therefore, submitted that in such a situation prejudice could be alleged by the suffering party that he had no opportunity, for that, such evidence was impermissible. The first judgment is in case of Doat Ali and Others vs. Mahammad Sayadali and Another, (supra). In this case also, there were two separate trials and....
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.... PW6 Mylerum Perumal PW6 PW7 Balraj PW7 LIST OF DOCUMENTS CC No.2/2003 (Dhanapal and others) Documents Marked CC 4/2004 (Alexander) Ext. P1 Sanction Order Ext. P5 Ext. P2 Mahazar (Seizure-Godown) Ext. P2 Ext. P3 Statement of Rahman Sait Ext. P7 Ext. P4 Statement of Janarthanan Ext. P8 Ext. P5 Statement of Ramesh Ext. P9 Ext. P6 Statement of Mydeen Ext. P11 Ext. P7 Mahazar (Search - Godown) Ext. P12 Ext. P8 Statement of Hari Gangaram Ext. P1 Ext. P9 Identity Card of Rajan Ext. P2 Ext. P10 Mahazar (Seizure - Room) Ext. P3 Ext. P11 Statement of Mahadevan Ext. P4 Ext. P12 Adjudication Order Ext. P13 Ext. P13 Shipping Bill Ext. P10 Judicial Exhibits Marked Judicial Report Not marked " 37. Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the crossexamination is equally important and relevant, if not more. Even if the examination-in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there ....
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....o an undisputed proposition of law that in a criminal appeal against conviction, the appellate court examines the evidence recorded by the trial court and takes a call upon the issue of guilt and innocence of the accused. Hence, the scope of the appellate court's power does not go beyond the evidence available before it in the form of a trial court record of a particular case, unless section 367 or section 391 of Cr.P.C. comes into play in a given case, which are meant for further inquiry or additional evidence while dealing with any criminal appeal. 42. In the present controversy, two different criminal appeals were being heard and decided against two different judgments based upon evidence recorded in separate trials, though for the commission of the same offence. As such, the High Court fell into an error while passing a common judgement, based on evidence recorded in only one trial, against two sets of accused persons having been subjected to separate trials. The High Court ought to have distinctly considered and dealt with the evidence of both the trials and then to decide the culpability of the accused persons. 43. There is one more angle to be considered i.e. whether to re....