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TMI Blog2010 (9) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... abhan, PW3- P. Vijayan & PW4 -Pakshi Rajan, who were then working as Intelligence officers in the office of Customs Officer at Mangalore, proceeded to B.C. Road cross, Bantwal and they were waiting for a lorry coming from Mangalore side. At that time, lorry bearing No. CNX 5524 driven by accused No. 2 came from Mangalore side. When detecting party tried to intercept, the driver did not stop the lorry, therefore, said lorry was chased for two kilometers and thereafter it was intercepted. Accused No. 2 was the driver of lorry and accused No. 1 was the owner of lorry. Accused 3 & 4 were sitting in the cabin of lorry. On interrogation, accused No. 2 told that lorry was used for transportation of fertilizer bags. However, on further interrogation, detecting party found that accused had concealed silver bricks in gunny bags under fertilizer bags. The officers of detecting party removed fertilizer bags and opened gunny bags, which contained in all 75 silver bricks. At the time of interception, accused 1 to 4 were apprehended, lorry and silver bricks were seized. Due to security reasons, silver bricks were brought to the Office of Collector of Customs at Mangalore. The silver bricks were s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to prosecute the accused. The evidence in proof of interception of the vehicle and the seizure of contraband is not satisfactory. 9. In view of abatement of appeal against accused No. 1, separation of case against accused No. 2 and acquittal of accused 3 & 4, the following points would arise for determination :- (1) Whether the prosecution has proved beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 & 4 were smuggling 75 silver bricks weighing 2561.130 kilograms in lorry bearing No. CNX-5524 and had reasons to believe that silver bricks were liable for confiscation under Section 111 of the Act, thereby committed an offence punishable under Section 135(1)(b) of the Act? (2) Whether the prosecution has obtained a valid sanction to prosecute accused 3 & 4? (3) Whether the Learned trial Judge has properly appreciated evidence on record? (4) Whether the impugned judgment calls for interference? (5) What order?" 10. The prosecution has relied on evidence of PW-1 Rajashekar to prove seizure of 75 silver bricks in the office of Assistant Collector of Customs, New ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... old them that he was transporting chemical fertilizer. He gave invoices in support of the same. PW-3 and others questioned accused No. 2 that they have credible information that the lorry was used for transporting smuggled silver bricks. Accused No. 2 contacted accused No. 1 and told other officials that they had concealed gunny bags containing silver bricks under the bags of chemical fertilizers. Thereafter, the tarpaulin of lorry was removed. Some of the bags of chemical fertilizers were removed in the middle and they found gunny bags containing silver metals. By then, it was 11.00 p.m. For security reasons, they brought the vehicle and the accused to the office of DRI at Mangalore. PW3 has deposed about the presence of panchas namely, PW-5 Ravi and PW-6 Jayaram. PW3 has deposed that he collected the names of persons travelling in the lorry in the office of DRI at Mangalore. At this juncture, it is relevant to state that PW-3 has not deposed that when they intercepted the lorry, in addition to accused Nos. 1 and 2, two other persons were sitting in the cabin of the lorry. PW-3 has not deposed that they had brought the lorry to the customs office at Mangalore along with four perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he mid night. Therefore, they brought the lorry and accused to the office of Assistant Collector of D.R.I at Mangalore. They learnt the names of accused viz Prabhakar Shetty (accused No. 1), Leo Sequeira, (accused No. 2), John Bastin Lopes (Accused No. 3) and Sudhakar (accused No. 4). The personal search of accused did not yield any incriminating materials. At this juncture, it is relevant to state PW-4 has not deposed that accused Nos. 3 and 4 were sitting in the cabin of the lorry when the lorry was intercepted. PW-4 has deposed about the presence of accused Nos. 1 and 2 when the lorry was intercepted. However, PW-4 has deposed about the presence of accused Nos. 3 and 4 in the office of DRI at Mangalore. 15. At the relevant time, PW-5 Ravi was working as gold smith at Prema Jewelers Work at Mangalore. At 12-1-1993 at about 7.00 p.m., he was summoned to the office of DRI at Mangalore, so also PW-6 Jayaram. Both PWs. 5 and 6 reached DRI office. Thereafter, PWs. 5 and 6 were taken in a car to B.C. road. They were waiting in that place till 9.00 p.m., at that time, they saw a lorry proceeding from Mangalore side to Bangalore side. The officials of the Customs Department gave signal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, he has reiterated that accused No. 4 - Sudhakar had given the statement as per Ex.P-8. At this juncture, it is relevant to state that accused Nos. 3 and 4 were produced before the jurisdictional Magistrate on 13-1-1993. As per the evidence on record, the statement of accused No. 4 was recorded on 13-1-1993. 18. It is seen from the records that on 14-1-1993, PW-2 Padmanabhan had submitted a remand application giving the details of interception of lorry and seizure of silver bricks. At paragraph 4 of the remand application, it is stated that accused No. 3, so also accused No. 4 have given their statements u/s 108 of the Customs Act. In the remand application, the gist of the statement made by accused Nos. 1 and 2 is stated. As regards accused Nos. 3 and 4, apart from stating that they have given statements u/s 108 of Customs Act, the gist of their statements is not reiterated. It is also not stated that the statements given by them were voluntary. 19. PW-8 E.M. Soori has deposed that he had recorded the statement of accused No. 3 John Bastin Lopes, as per Ex. P-7. In the discussion made supra, I have referred to the remand application, wherein the gist of statements is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At that time, 4 or 5 persons surrounded him and brought him and questioned him as to why he was talking to accused No. 2. Accused No. 3 told him that accused No. 2 is known to him and therefore, he was talking with him. Thereafter, he was retained by the officers of the customs. The lorry was got repaired and on the said day at about 12.00 p.m., accused No. 3 was brought in a Maruthi Jipsi to DRI office at Mangalore. He had also seen accused No. 4 near the lorry. During cross-examination of DW-1, apart from suggesting that he had made a statement as per Ex. P-7, it was not suggested to him that he was travelling in a lory bearing No. CNX-5524 at about 8.00 p.m., on 12-1-1993 in order to help accused Nos. 1 and 2 to transport the smuggled silver bricks in the lorry. It was not even suggested to him that he was aware that silver bricks had been concealed under the fertilizer bags. The evidence of DW-1 that the lorry was intercepted by the customs department near Khanapur on Bangalore-Bombay road has not been controverted. Accused No. 4 Sudhakar has given evidence as DW2. He has deposed that he had been engaged by accused No. 2 to work as a Cleaner. Therefore, he boarded the lorry a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ments (though seized by the officials of the Customs Department) to prove the movements of the lorry from 8-1-1993 till it was intercepted at about 9.00 p.m., on 13-1-1993. Above all, the evidence of the prosecution does not reveal that accused Nos. 3 and 4 were aware of the concealment of silver bricks in the lorry. They had conscious possession of silver bricks. Even if the statements made by accused u/s 108 of the Customs Act, are taken into consideration, they would reveal that accused Nos. 3 and 4 had been engaged by accused Nos. 1 and 2 for the purpose of transporting the load of fertilizers from Mangalore to Bombay. Their statements do not reveal that they were present when the silver bricks were loaded into the lorry and they were present when silver bricks were covered by the bags of fertilizers. In the circumstances, the statements given by accused u/s 108 do not lend corroboration to the evidence adduced by the complainant. 25. The complaint was filed by the Assistant Director of Customs, Mangalore. When the complaint was filed by one Manjunath was working as Assistant Director of Customs (Preventive), Mangalore. The averments of complaint would indicate that the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution has failed to prove beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 & 4 were smuggling 75 silver bricks weighing 2561.130 kilograms in lorry bearing No. CNX-5524 and have reasons to believe that silver bricks were liable for confiscation under Section 111 of the Act, thereby committed an offence punishable under Section 135(1}(b) of the Act. 29. The competence of sanction order has been called into question. The sanction order as per Ex. P.10 indicates that the Sanctioning Authority namely Collector of Customs at Bangalore on perusal of panchnama dated 12-1-1993 and voluntary statements dated 13-1-1993 accorded sanction to prosecute accused 1 to 4. On perusal of records, I find that no mahazar was prepared on 12-1-1993. There is no specific reference to voluntary statements given by each of the accused. The Sanctioning Authority without stating whether accused 1 to 4 were engaged in acquiring, possessing, keeping, concealing, carrying, purchasing and dealing with said contraband having reasons to believe that said goods of foreign origin were liable for confiscation has accorded sanction to prosecute the accused, the sanction order does not even refer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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