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H.K. Thakor Versus Poonamchand Laxmichand Kotadia

2015 (4) TMI 1076 - GUJARAT HIGH COURT

Validity of acquittal order - Recovered 3 gold bars in raid - Also statements of the respondents also recorded under Section 108 of the Customs Act, 1962 - Held that:- at the time of passing the impugned judgment, learned trial Judge has given categorical finding that there are some contradictions in the evidence as regards the packing of the sample. It is also found that from the report it cannot be said that it is of the sample taken in the present case and even the panch witness is also not s .....

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15-4-2015 - K.J. Thaker, J. Shri Y.N. Ravani, Advocate, for the Appellant. Shri Harshad J. Shah, Praful J. Bhatt, Ms. S.M. Ahuja, Advocates and Ms. Monali Bhatt, APP, for the Respondent. JUDGMENT The Assistant Collector of Customs has preferred this appeal under Section 378 of the Criminal Procedure Code against the judgment and order dated 30-3-1991 rendered by the learned Additional Chief Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 123 of 1988. The said case was registered agains .....

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rea of City of Ahmedabad, at evening time. While they were on the road, they found that respondent Nos. 1 and 2 were there and respondent No. 3 came near them and delivered one packet to respondent No. 2 and in turn the respondent No. 2 delivered it to respondent No. 1 on which the raiding party reached to the spot. Therefore, the respondents started running and respondent No. 1 threw the packet on the roof of a shop. Respondent Nos. 1 and 2 were caught by the raiding party and upon bringing dow .....

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nces as aforesaid. Respondents were tried by learned Additional Chief Metropolitan Magistrate, Ahmedabad, who acquitted them by the impugned order. 3. Being aggrieved by and dissatisfied with the said judgment and order of acquittal dated 30-3-1991 rendered by the learned Additional Chief Metropolitan Magistrate, Ahmedabad in Criminal Case No. 123 of 1988, the appellant has preferred the present appeal before this Court. 4. Mr. Y.N. Ravani, learned advocate appearing for the appellant .....

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ized by the Customs officers on the basis of the evidence and material on the record of the case. He further submitted that the trial Court ought to have convicted the accused persons on the basis of the statements of accused Nos. 1 and 2 recorded under the provisions of Section 108 of the Customs Act which are admitted in evidence as laid down by the Hon ble Supreme Court in the judgment reported in AIR 1970 SC 940 = 1999 (110) E.L.T. 324 (S.C.) and other judgments. He also submitted that the s .....

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ht not to have discarded the entire evidence adduced on behalf of the prosecution only on the basis of some minor contradictions in it. He also submitted that since respondent No. 3 ran away from the spot it cannot be said that the officers of Customs could not identify him. He also submitted that one Mr. Tripathi, who had written the panchnama has also testified the manner of packing and the contents of panchnama. He also submitted that the trial Court erred in coming to the conclusion that the .....

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that there is perversity in the impugned order. It is also submitted that only based on the statement of accused Nos. 1 and 2 under Section 108 of the Customs Act, it cannot be said that the accused are guilty of the offence with which they are charged. It is also submitted that there is no other evidence against the accused and the learned trial Court has rightly acquitted them of the charges levelled against them. In this case, accused No. 3 was not found with any contraband article, therefore .....

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Looking to the charge framed against the respondents-accused, the prosecution has to prove its case beyond reasonable doubt. The incident in question is of 1987 and the learned trial Judge, after full-fledged trial was unable to persuade himself that the accused were guilty of the offence for which they were charged. At the time of passing the impugned judgment, learned trial Judge has given categorical finding that there are some contradictions in the evidence as regards the packing of the samp .....

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se beyond reasonable doubt and rightly acquitted the accused of the charges levelled against them. 7. It is a settled legal position that in acquittal appeal, the Appellate Court is not required to re-write the judgment or to give fresh reasonings when the Appellate Court is in agreement with the reasons assigned by the trial Court acquitting the accused. In the instant case, this Court is in full agreement with the reasons given and findings recorded by the trial Court while acquitting the .....

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the decision of Sheo Swarup v. King Emperor wherein it was held that the power of the High Court extends to a review of the entire evidence on the basis of which the order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principle .....

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ndered , or has through incompetence, stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice, or has in some other way so conducted itself as to produce a glaring miscarriage of justice, or has been tricked by the defence so as to produce a similar result.                      (emphasis supplied) Sections 417, 418 and 423 of the Code give to .....

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ws of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal .....

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