TaxTMI 
TaxTMI 
1990 (11) TMI 154
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....t which is also punishable under Section 135(i)(ii) of the Customs Act. The prosecution case has been stated in detail by the learned Additional Chief Metropolitan Magistrate in his judgment and it is not necessary to report the same. It could be briefly stated thus : On the date in question, Customs Officer Shri Reddy noticed P.W. 12 Merchande, a loader of Air India, putting a blue-colour suitcase on the conveyor belt and the suitcase did not bear any chalk mark of the customs showing that it was checked by the customs. He, therefore, contacted Merchande who told him that he was loader and accused No. 4 had directed him to do so. Further enquiries led to the off loading passenger Abdul Aziz, but on enquiry he was allowed to go and continue his journey to Dubai. Accused Nos. 2 and 3 were traced at the instance of accused No. 4 and they led to (the residence of accused No. 1 where some empty tins of film were recovered. It so happened that the suitcase on being opened, was found to contain 17 reels of Hindi feature film 'Geeta Mera Naam' without the tin, wrapped in brown colour paper. The usual enquiry by the Department of customs was made and ultimately the Respondents came to b....
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....ng it on the conveyor belt for being carried to the Aircraft. He, therefore, in my view, was a party to the conspiracy if at all it was so hatched by accused Nos. 1 to 4. His evidence is, therefore, that of an accomplice at any rate and could itself be tainted evidence requiring obviously corroboration. The learned Counsel for the appellant tried to seek support to the statement recorded by the Customs Officers from this evidence of Merchande. In my opinion, it could not be done because Merchande's evidence Itself would require support and the statements recorded by the Customs Officers cannot stand on their own because they were retracted by the makers. It is not necessary to state that the retracted statements themselves require corroboration before they are acted upon. Not much, therefore, would turn upon the evidence of Merchande. The prosecution case so far as accused No. 4 was concerned was that he told Merchande to load it and on that point, as stated earlier, there is a confessional statement of accused No. 4 which has been retracted and the evidence of Merchande, therefore, on that point cannot be said to have been satisfactorily established. The suitcase was collected fro....
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.... Customs authorities. In the circumstances, in my opinion, and that was also the view of the learned Magistrate, it was incumbent upon the prosecution to examine him. It has not been shown that he was in fact in Dubai at the time when the trial was proceeding. Even assuming it was so, the expenses that would have been incurred for citing him as a witness could not be considered to be unreasonable in the circumstances of the case where the prosecution case depended upon his evidence. In my view, therefore, the learned Magistrate was right in blaming the prosecution for not examining Abdul Aziz. 8. It has to be noted that Abdul Aziz was a passenger who had come in at the last minute and succeded in getting the ticket with the assistance of, and that is the case of the prosecution, accused Nos. 2 and 3. It is they who wanted this suitcase to go to Dubai because of the request made by the accused No. 1 to that effect. It is, therefore, very likely that Abdul Aziz who could travel by the flight with the assistance of these two persons, would have in turn agreed to carry the suitcase with him. On learning that it contained some contraband, he was bound to disclaim that particular suit....
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.... that the failure on the part of the learned Magistrate to refer to this evidence and deal with it was not correct. It is not that he was not aware of this piece of evidence. In para 13 of his judgment at the end, the learned Magistrate has made a reference to it. It is true that while dealing with the evidence, he says that the only evidence against these two persons is the statements made by them to the Customs authorities. However, I do not think that this has affected the ultimate conclusion reached by the learned Magistrate. In this connection, a decision of the Supreme Court in the case of Hem Raj Devial v. The State of Ajmer reported in 1954 Cri L.J. page 1313 was relied upon. The observations of the Supreme Court to the following effect were refered to :- "The contention that a confession can only be corroborated by evidence discovered by the police after a confession has been made and any material that is already in their possession, cannot be put in evidence in support of it, is not valid. A confession can be made even during a trial and the evidence already recorded may well be used to corroborate it. It may be made in the court of the committing magistrate and materi....