TMI Blog1979 (3) TMI 201X X X X Extracts X X X X X X X X Extracts X X X X ..... or more of the packages which are said to have been lying unaccounted for in the Customs House, nor can we agree that the averment about residents of Varor having deposited the said packages in response to a warning issued to them earlier borders on the absurd even though it may not be very probable. Thus as contained in paragraphs 8 and 9 leave the prosecution with no material such as may suffice, apart from documents exhibits 31 and 46 to be incriminatory of any of the accused. Accordingly we accept all the appeals, reverse the impugned judgment, set aside the conviction recorded against and the sentences imposed upon the appellants (being accused Nos. 1 to 11 and 13) and acquit them of the charge in its entirety. - Criminal Appeals Nos. 496-498 of 1976 and 321 of 1977; Special Leave Petition (Criminal) No. 490 of 1979 - - - Dated:- 27-3-1979 - S. Murtaza Fazal Ali and A.D. Koshal, JJ. JUDGMENT [Judgment per : Koshal J.]. - By this judgment we shall dispose of Criminal Appeals Nos. 496, 497 and 498 of 1976 and No. 321 of 1977 as well as Special Leave Petition No. 490 of 1979, all of which are directed against a common judgment of the Bombay High Court dated 27th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6 of the Customs Act, the charge being sub-divided into 66 counts. The substance of the allegation against them was that accused Nos. 1 to 11 entered into a conspiracy with accused No. 13 who is a smuggler, and his two associates, accused Nos. 12 and 14, from the 1st to 3rd of March 1967 at Varor and Tarapur (District Thana) the common object of which was to attach 39 packages of smuggled goods out of 103 and allow the rest to escape attachment, which conspiracy was acted upon and in pursuance of which accused Nos. 1 to 11 accepted from accused No. 13 illegal gratification in the form of money amounting in all to ₹ 48,800/- in addition to some smuggled goods, as a reward for the favour shown to accused Nos. 12 to 14. 4. The Additional Special Judge, Thana, who held the trial found the prosecution case proved against accused Nos. 1 to 13 who were convicted of various offences covered by different counts of the charge and were sentenced in consequence to imprisonment for periods ranging from six months to six years and to fines ranging from ₹ 50/ to ₹ 10,000/-. Accused No. 14 was however acquitted of the charge in its entirety. 5. The 13 persons convicted by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he informant provided further information to the Customs Officers. A party consisting of Assistant Collector of Customs Ganguli (P.W.2), Rummaging Inspector of Customs Ramchandani (P.W.1) and Intelligence Officers of Customs R.T. Sainani (P.W.3) and G.R. Patankar (P.W.9) visited Poisar a second time, after deputing Preventive Officers of Customs D.Y. Agarkar (P.W.8) and Balasundaram to keep a watch at the Mahim check-post and intercept any truck which aroused suspicion. The search at Poisar again proved futile when one Sadiq Mohomed suggested to the Customs party that the place in question might be Boisar and not Poisar. The party visited Police Station Thana and form there took along Inspector of Police K.T. Sainani (P.W.11), Sub-Inspector of Police Khanvilkar and some armed constables. The party then visited Boisar but without success. As the existence of a Hanuman Temle in the vicinity of the place where the smuggled goods were to arrive had been mentioned by the informant, a suggestion was made by a police constable that the party might visit Tarapur which lay near such a temple. The party reached Tarapur at about 5 A.M. on the 3rd of March 1967, and then decided to obtain assi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at he had taken a sum of ₹ 10,000/- and that the remaining amount had been taken by other members of the staff from accused No. 13. Accused Nos. 1 to 11 then produced currency notes as detailed in exhibit 31 which may be reproduced here with advantage : Indian currency surrendered on 3rd March 1967 by (1) Damle, Superintendent 10,000 (2) Ali, S.I. 10,000 (3) Naidu, Inspector 10,000 (4) Pednekar, Sepoy 2,000 +2F. Pens (5) Gavas, Sepoy 2,000 (6) Karudkar, Sepoy 2,000 (7) Nikam, Sepoy 1,000 + 1,000 (8) Keer, Sepoy 800 (9) Poojara, Sepoy 1,000 (10) Sawant, Sepoy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 31 was signed by Ganguli (P.W.2) and handed over to Rege (P.W.22). Patankar (P.W.9) then made a Panchanama (exhibit 46 of the articles which accused Nos. 1 to 11 had received from accused No. 13 as part of the illegal gratification. The completion of the panchanama took quite a few hours and went on into the 4th March 1967. 14. 52 witnesses were produced at the trial in support of the prosecution case. They included residents of Varor who were expected to depose that 103 packages had arrived at the seashore either on the 28th February or the 1st of March 1967, that those packages were removed to Varor village by the villagers and that it was thereafter that a tripartite deal between accused No.13, the villagers and the officials attached to the Tarapur Customs House was struck, as a result of which 39 packages were seized by the customs staff while the rest were allowed to be taken away by accused No. 13 who paid a sum of ₹ 5000/- to a leader of the villagers as hush money, in addition to what he had to pay and give to accused Nos. 1 to 11. All the witnesses from Varor, however, turned hostile to the prosecution. The depositions of the other witnesses sought to prove the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sent to overawe the Excise Officers and that object seems to have succeeded. If that is so all the incriminating statements made by accused Nos. 1 to 11 either in relation to money or the goods will have to be eliminated from consideration altogether. We hold that the entire evidence of the Customs Officers and Police Officer Sainani with regard to the confessional statements of accused Nos. 1 to 11 is inadmissible and cannot be relied upon as evidence against the accused. 18. Nevertheless the High Court regarded documents exhibits 31 and 46 as forming a correct record of what transpired at the Tarapur Customs House on the 3rd and 4th of March 1967 in spite of the fact that exhibit 31 remained unauthenticated till the arrival at the Customs House of Almeida (P.W. 37) and Rege (P.W. 22) and not even an attempt was made till then to prepare a panchanama of the goods said to have been produced by accused Nos. 1 and 4 to 11. In this connection the High Court observed : Having heard the arguments of the learned counsel on both sides and after having gone through the entire evidence in the case along with the counsel for the accused, our impression and view is that Mr. Ganguli ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Evidence Act and are inadmissible in evidence. But we do not see eye to eye with the High Court in the opinion it has formed with regard to the other evidence. The question is not of Ganguli (P.W. 2) having committed some errors of procedure but of his reliability and that of the other prosecution witnesses who took part in the proceedings at the Tarapur Customs House on the 3rd and 4th March 1967. In this connection we may straightway observe that we look upon document exhibit P-31 which forms the corner-stone of the prosecution case, with great suspicion. Our reasons in that behalf are obvious. Ganguli (P.W. 2) was an experienced officer holding a high rank in the Customs Department and, as the High Court also observed, he undoubtedly knew that he had all the powers of a police officer to effect a raid, seize goods, prepare a panchanama and record statements under Section 108 of the Customs Act. Not only did he not prepare any panchanama of the money and goods said to have been produced to him by the accused, he did not even record their statements although the same amounted to confessions and therefore to very valuable pieces of evidence. Not only that, he did not care even to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve acted on documents exhibits 31 and 46 not so much because of their intrinsic worth but mainly for the reason that the defence version was regarded by it as a fantacy. It thought that the contraband articles lying unaccounted for in various places forming part of the Tarapur Customs House could not have been found there unless they were part of the booty received by accused Nos. 1 to 11 from accused No. 13. It also rejected as preposterous a suggestion made by counsel for the defence that the amount of ₹ 48,800 could have been recovered from the packages in which those articles were contained. In taking the view of the matter that it did, the High Court, for all practical purposes, presumed the accused to be guilty unless they succeeded in establishing their innocence, which was not a correct approach to the appreciation of evidence. It was for the prosecution to prove affirmatively that the contraband articles were in the conscious possession of accused Nos. 1 to 11 and that they had received the currency notes in question as claimed by the prosecution, neither of these matters was a matter of assumption, although of course the same could be inferred from circumstances whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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