TaxTMI 
TaxTMI 
1988 (3) TMI 77
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....ntacruz Air Port. A flight from Gulf countries was expected to arrive and since the situation was sensitive the officers of the Customs Intelligence were posted at the Air Port to keep a watch. That Officer noticed the present respondent-accused along with one of his companions by name Deshpande emerging from the direction of conveyor belt and proceeding towards the baggage hall. Each was carrying a brief-case in his hand though the one in the hand of the accused was more sophisticated being a Japanese make. They were sighted by P.W.2 Sherkhan who was attached to the Customs Department, He felt a little suspicious on account of the manner and the mode in which the accused was carrying the brief-case generating an impression that the brief-case was quite heavy and so much that the accused had to lean forward while walking. At that.time P.W. 1 Samuel Raj who was the Preventive Officer of Customs was also on duty as Intelligence-Officer. P.W.2 Sherkhan told two about his own suspicion near the P.R.O's counter, P.W. 1 Samuel, therefore,to verify, accosted the accused and his companion. By that time the accused had kept the said brief-case on the ground. Instead of going towards the dep....
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....papers were submitted to the Additional Collector of Customs who accorded the sanction and ultimately armed with that sanction the complainant -the Assistant Collector Shri Patil filed the complaint in the Court of the learned Chief Metropolitan Magistrate, Bombay being Case No. 41/CW of 1980 for the offences under Sections 135(1)(a)(ii) and 135(1)(b)(ii) of the Customs Act and Section 5 of the Imports and Exports (Control) Act, 1947 on the allegations that the accused was knowingly concerned in fraudulent evasion of the Customs Import duty and of the prohibition under the Imports and Exports (Control) Act in relation to the said writs watches and also he acquired possession thereof and was found concerned in carrying and removing the same or in any manner dealing with the same which he knew or had reason to believe were liable to confiscation under Section 111 of the Customs Act. It is further alleged that he also contravened Section 5 of the other Act by importing the said goods without any import licence or customs clearance permit for the same. 4. After certain evidence was recorded, a charge on these courts was framed on the same pattern which is already indicated to which ....
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....or their identity when he was told, that both of them were C.B.I. Officers. It was checked and verified on the basis of identity card of Deshpande. At that point of time the accused kept-the brief case on the floor and when questioned he informed these officers that the bag did not belong to him nor was he concerned with the same. It is thereafter that the other officer Shri Gehani was called onthe spot who also interrogated the accused but received the same reply. It is at that stage that panchas were called. Since no key was traced with the accused the bag was opened by; the duplicate key. In between Sherkhan asserts and Samuel confirms that one-Arab was brought to the spot on Sherkhan suspecting him to be concerned with the goods. However, that suspicion was proved to be unfounded because no key was found with him and even otherwise according to Shri Sherkhan his bona fides were established. In the search of brief-case 405 wrist watches were found which were seized under panchanama Exh. P-1. The accused was interrogated more than once after getting the necessary sanction from the concerned officer the Assistant Collector Shri Patil filed the complaint for the said offences. This....
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....tually carrying the bag. 10. Shri Ved, the learned Counsel for the respondent-accused, adopting the reasons assigned by the learned trial Magistrate contended that it could not be an accidental slip on the part of the prosecution and the officers not to mention even inferentially the names of the Customs'Officers who were concerned with that episode and according to him that position has been kept deliberately nebulous so that it can be moulded in any manner. It is pointed out in that behalf that the same deficiency appears first in the panchanama and significantly it is carried forwarded in the complaint as also in the sanction accorded by the concerned officer and it is also brought on record that the list of witnesses given by the prosecution contained the names of more than two Customs Officers. 11. It was agitated by the prosecution over again that the conduct displayed by the Customs Officers was obviously bona fide or otherwise they would not have allowed the companion Deshpande to go scot-free and they fairly conceded that nothing was found in his possession. It is in that behalf worth nothing that the brief-case that was in possession of Deshpande was never searched ....
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....o that the tips would not have been within the vision of any one and yet Sherkhan wanted the Court to believe that he could minutely see all these details. Significantly this theory was not introduced in examination-in-chief but came to be introduced for the first time in the cross-examination. The teamed trial Magistrate has rightly commented on the same. 13. A query was posed in the trial Court as also on this forum on behalf of the prosecution that is it probable that a person who really owned that bag if he was other than the accused would have left it on the floor un-attended. The learned trial Magistrate has dealt with this aspect little elaborately and concluded that if the accused was the carrier then as per the human conduct and the experience normally the article containing dubious material would not be handed directly and thus would not pass hands in that manner and in any event the carrier would not take it directly from the one concerned with the same. In that behalf it is further submitted and which is also accepted by the learned trial Magistrate that it is not uncommon to find that some articles are kept at a particular spot though those are not abandoned in that....
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.... the Customs Officers claim to be eye witnesses and if there is possibility of having a check and counter check to their case then that should be done by the Department and should be unfolded before the Court. Consequently, therefore, in the nature of things, and under the thrust of the situation it was extremely essential and not only desirable to record the statements of these two officers P.Ws. 1 and 2 because the complaint is filed by someone else who had no personal knowledge. In the instant case however there is yet another counter check which was available to the prosecution in the shape of the reports made by these two officers and yet we find that those reports are not produced before the Court and no plausible explanation is tendered in that behalf also. In a given case perhaps the absence of the statements could have been replaced and thereby condoned by relying on the reports immediately made which could be easily substituted for the first time, even then such an opportunity has been allowed to be snatched by the prosecution themselves. Obviously, therefore, the defence are cleany handicapped as there is no check and counter check to examine and test the credibility of ....
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....cumstances especially when that is the only evidence available to connect the accused. 16. The Other disturbing feature relates to the panchanama. According to the prosecution panchanama ExP-1 was drawn after the bag was opened with the duplicate key when it revealed that existence of 405 wrist watches of foreign make. Certain statements were incorporated in the panchanama some of which are already discussed. In a composite manner there is an endeavour to tag some of the statements in the panchanama even to the culpability of the accused vis-a-vis the bag in question. The panchanama is alleged to have drawn practically on the spot though in the adjoining roori) at the same time. One would, therefore, expect that the copy of the said panchanama would be given to the accused immediately on the spot. The obligation to do so is not denied by the prosecution. If a copy was supplied then there would have been a contemporaneous record regarding the acknowledgement of the copy by the accused. Realising this situation the witnesses came out with the story that they did offer the copy of the panchanama to the accused to declined to accept the same. This is a very specious explanation whic....
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.... anxiety was Indicated by the accused to go out of the premises but he was practically loitering nearabout carrying the bag with him. 18. Shri Ved, the learned counsel, also rightly relied that at least three Customs Officers who are alleged to have come on the spot immediately after the apprehension of the accused have not been examined. One of them included Shri Gehani who is alleged to have questioned the accused when the accused disowned any knowledge about ttie bag. It is an accepted position that neither Shri Qehani nor other officers are examined. A further link by way of corroboration Is thereby snatched because these officers and especially Shri Gehani would have been in a position to disclose as to what sort of disclosure was made by P.W.I Samuel Raj and P.W,2 Sherkhan. This argument observed by the learned counselhas much substance and which is rightly commented upon by the learned trial Magistrate. 19. It is also worth noting that the first statement of the accused was recorded on the spot and admittedly that is an absolutely ex-culpatory statement. Even thereafter his further statements were recorded and some in the adjudication proceeding and significantly each ....