TMI Blog2011 (3) TMI 1409X X X X Extracts X X X X X X X X Extracts X X X X ..... tted any error in acquitting the accused, Bail bonds of all the accused stand cancelled - Criminal Appeal No. 674 of 1989 with Criminal Application No. 1304 of 1989 - - - Dated:- 10-3-2011 - B.H. Marlapalle, U.D. Salvi, JJ. Anuradha Mane for the Appellant-UOI V.G. Pradhan, Sr. Adv. with Jayant Gohil for the Respondent M.M. Deshmukh, APP for the State JUDGMENT B.H. Marlapalle, J 1. This appeal filed by the State of Maharashtra through the Assistant Collector of Central Excise and Customs is directed against the order of acquittal passed in Sessions Case No. 1303 of 1988 by the learned Additional Sessions Judge for Greater Mumbai on 2/2/1989. The present respondents came to be tried in the said case for the offences punishable under Section 120-B of IPC read with Sections 20, 23 and 29 of the N. D. P. S. Act, 1985 and Sections 135 (i)(a) and 135 (i)(b) read with Section 135(1)(ii) of the Customs Act, 1962. 2. As per the prosecution case, on 31/7/1987 Shri Prabhakar Karanjekar (PW 6), who was working as the Superintendent of Central Excise with his office at Piramal Chambers, Lalbaug, had received an information at about 2.45 p.m. from a known ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 00/- was recovered from him and at the same time, during the personal search of accused no.3, some documents and driving license were recovered from him. The panchanama at Exh. 22 was drawn at about 11 p.m. in the presence of two independent pachas, PW 2 - Shrikant Patil and Shri Vishnu Satam. On completion of the investigation, the charge-sheet was filed. 3. During the trial, the prosecution examined in all seven witnesses and PW 7 - Shri Sundersingh Dabola, who was the driver and near relation of accused no.3 turned hostile. Shri Satam was not examined as a witness and in support of the panchanamat at Exh. 22, only PW 2 - Shrikant Patil was examined. He was the only independent witness and the remaining five witnesses were the officers of Central Excise. PW 1 - Uttamrao Jadhav was Inspector, PW 3 - Shri Ramchandra R. Sapre, PW 4 - Karamoottil Philip, PW 5 - Shri Kashinath Joshi and PW 6 - Shri Prabhakar Karanjekar were the Superintendents from Central Excise. The accused claimed that they were innocent and they were roped in the case without any basis or evidence. The prosecution case was in two parts, namely, (a) the physical possession of Hashish by accused nos.1 and 3 on 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It was also proved from the evidence that all these statements were retracted when the accused were produced on 4/8/1987 before the competent court i.e. Metropolitan Magistrate. The report at Exh. 72-B submitted by the Chief Medical Officer of the concerned jail was considered by the trial court and was rightly relied upon, despite the opposition by the learned Special P. P. and the trial court, therefore, noted that the statements so recorded were not voluntary statements. For all these reasons, the trial court concluded that the retracted confessions, in the absence of any corroboration by an independent and unreliable witness, could not be relied upon and it did not take the prosecution case any further. We are satisfied that the said finding does not suffer from any errors and, therefore, the charge of conspiracy, punishable under Section 120-B of IPC could not be proved against any of the accused. 6. Let us now proceed to consider the search and seizure of the contraband weighing about 824.780 kgs. This was allegedly recovered from the tempo bearing Registration No. MMS-432 and by the team of the Central Excise officers and in the presence of two independent witnesses, na ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hbour and his friend. In the crossexamination of this witness, the defence counsel brought out sufficient material to point out that Satam was a known criminal and a history-sheeter who was externed on two occasions. In his examination-in-chief, this witness stated that he was present along with the Central Excise officers during the entire search and seizure operation which lasted till 11 p.m. on 31/7/1987 and the panchanama at Exh. 22 was drawn. In his crossexamination, he admitted that on the same day i.e. on 31/7/1987, he was engaged in his business of selling Vada Pav between 8 p.m. to 12 p.m. He also admitted that he was in the company of accused nos.1 and 3 continuously for a period of six hours or more on 31/7/1987. However, when he was called upon to identify accused no.1 in the court, he identified accused no.2 as accused no.1. But, after he re-entered the witness box in the second session, he changed his depositions and claimed that it was a mistake. The defence counsel in the cross-examination of this witness further brought out that in the appearance of accused nos.1 and 2 there was a marked difference in as much as one was of fair complexion whereas the other one was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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