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TMI Blog2012 (2) TMI 198X X X X Extracts X X X X X X X X Extracts X X X X ..... posted as constable of Delhi Police. 3. The respondent/accused initially resisted arrest but was overpowered by the officers of the appellant department. He was searched but no gold was recovered from his possession. The custom officers recovered a cloth belt from the possession of the accused which had been tied to his waist under his trousers. The belt had a pocket stitched on it, which was intended to be used for concealing the gold biscuits. The incriminating articles were seized. 4. The packet was examined. The gold biscuits were found to bear Swiss markings and weighed 2.819kgs. The purity of the biscuit of yellow metal claimed to be gold were tested by a goldsmith PW6, who opined them to be of 24 carats purity and valued at Rs.13,02,000/-. 5. A voluntary statement was tendered by the accused under Sec 108 of The Customs Act in which he admitted the recovery and seizure of the aforesaid gold biscuits; and also that he was to pick up the recovered gold from the said toilet and to deliver the same to one Bhagirath. He further stated that on 18/01/94, Bhagirath had told him that he will bring 5kgs. gold through one Surjit, which he should attempt to take ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and that he has been falsely implicated due to enmity with the officers of the Customs Department and further that the revisional authority has exonerated him. 9. Before proceedings to advert to the submissions of learned counsel for the petitioner/department and learned counsel for the respondent/accused, it may be noted that it is trite that an appeal against an order of acquittal is extraordinary remedy and the power to appeal is to be exercised by the government sparingly. Though, the discretion to exercise that power is not subject to the control of this Court, but this Court can, however, exercise and check against arbitrary exercise of power of filing an appeal against an order of acquittal by not granting leave and thus not entertaining the appeal. Needless to state that the appeal against an acquittal would lie on facts as well as law. While entertaining the petition of leave to appeal, I am conscious of the principle of overwhelming presumption of innocence of the accused in our criminal law and also the fact that the same has been further reinforced and strengthened by the order of acquittal by the learned trial court. 10. In this backdrop of legal propo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fell down and sustained injuries. The entire testimony of PW7 remained un assailed by the accused/respondent. 12. There are various other factors and circumstances indicating the conduct of the accused/respondent. It remained to be explained as to how and under what circumstances, the accused went inside the toilet meant for handicapped persons when he being the police official working there was supposed to know the said toilet to be meant for handicapped persons. Even otherwise, the circumstances of his going towards that side also remained unexplained. If he was not guilty and happened to be there by chance, he when confronted by PW4 Sudesh, would not have tried to run away and in the process hit PW7. The testimony of PW2 completely appears to be supporting the prosecution version. He categorically supported the fact that when he searched the pocket and found the accused/respondent there, he tried to run away and scuffled with Hawaldar (PW7). This fact cannot be ignored outrightly. 13. Likewise, the testimony of PW3 Mr. Anil Khanna needed appropriate appreciation and consideration. He had recorded the statement of accused. He categorically denied the suggestion th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls which would not have been known to anyone, unless disclosed by them. That would prima facie reinforce that the statements were recorded at their dictates and were not pre-recorded. 17. The observations of learned trial court that it is but natural that PW4, PW8 and PW9 who were employees of the contractor would not have made statements or signed the documents without the specific knowledge of contractor and the possibility of their having signed statements made to the custom officers without knowing their contents at the instance of said contractor, cannot be ruled out, is all imaginary and without any basis. It is prima facie seen that the statements of these witnesses, though not in their handwriting, are made by them. With regard to the voluntary statement of PW4, this fact is confirmed by PW5 and this is also further confirmed from the nature of contents of her statement. All these aspects need further consideration. 18. Learned ACMM has herself recorded that the testimony of PW2 established involvement of accused coupled with recovery of incriminating articles and that it is further corroborated by testimony of PW7 which has remained un-assailed. It has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eedings lacked proper appreciation of evidence, it would have no bearing on the criminal proceedings. If the exoneration in the adjudication proceedings is on merits and it is found that the allegations are not substantiated and the accused is innocent, the criminal proceedings on the same set of facts and circumstances may not be allowed to continue [Sunil Gulati v. R.K. Vohra [2007 (1) JCC 220. 21. Thus, it comes to be that a distinction has been drawn where exoneration in an adjudicating proceeding on a given set of facts and evidence is on merits vis-à-vis where exoneration in adjudicating proceedings is either not on merits or criminal proceeding is based upon different set of facts and evidence. The adjudicating authority in this case prima facie had found the respondent/accused guilty of possession of confiscated gold weighing 2.80 kg concealed in the cloth belt with pockets. A show cause notice was issued to him. The respondent/accused preferred an appeal before the Commissioner of Customs which upheld the order of adjudicating authority. The respondent preferred a revision before the Competent Authority which, as noted above, vide order dated 27.12.2006 exen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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