TMI Blog2018 (7) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... uram Branch, Chennai. The Bankers Pay Order is marked as Ex.P6. This is also not disputed by the appellants - After settling the Customs duty under KVS Scheme, the vehicle has been taken back by A-3 on 19-9-1994 under Ex.D6. Thus it is clear that the LEXUS car was imported in violation of Transfer of Residence Provisions for import of a passenger car. The settlement under KVS Scheme does not give any immunity to the appellants from prosecution under Sections 120B, 420, 468 and 471 IPC and Prevention of Corruption Act. Validity of reliance placed on the statements given by the accused persons in the DRI proceedings - case of appellant is that the proceedings under DRI literally been lifted by the CBI and photo copy of the documents collected by DRI had been marked without abiding the Law of Evidence. In the said course the statements given by the accused persons in the DRI proceedings had been relied upon by the prosecution to hold the accused guilty - Held that:- It is now well-settled that DRI, Income Tax and Customs Officials are not police officers and statement given to them are admissible in evidence. There is no bar in law to look at the statement of a person given to s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is account on his behalf. From the said account Customs duty for the import of LEXUS car was remitted by way of Bankers Pay Order. Though the Regulation says that Customs duty remittance must be paid by way of Foreign Inward Remittance through Bankers Pay Order, the Indian Currency deposited into the Current Account of M/s. Tamilarasi Publications was used for remittance of Customs duty based on the letter of Natarajan (A-1) as if the said Current Account had enough Foreign Inward Remittance. (ii) V. Bhaskaran (A-2) person found in possession of the LEXUS car claiming it to be his marriage gift by one Dr. S. Balakrishnan an absconding accused in this case and father of Yogesh Balakrishnan (A- 3). Found privy to the cheating and forgery. (iii) Yogesh Balakrishnan (A-3) : Actively co-ordinated in the import of the LEXUS car by fabricating documents to circumvent the conditions imposed by the Government of India in the Transfer of Residence Provisions. (iv) Smt. Sujaritha Sundararajan (A-4) : The Branch Manager of Indian Bank, Abiramapuram Branch, Chennai, helped the other accused (A-1 to A-3) and the absconding accused Balakrishnan by issuing certificate as if enough Foreign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; 2nd Accused-V. Bhaskaran: (i) found guilty of offence u/s 120-B r/w 420, 467, 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-. 3rd Accused-Yogesh Balakrishnan: (i) found guilty of offence u/s 120B r/w 420, 467, 471 IPC and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; (ii) found guilty of offence u/s 420 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; (iii) found guilty of offence u/s 467 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ₹ 10,000/-; (iv) found guilty of offence u/s 467 r/w 471 IPC and sentenced to undergo R.I. for 2 years and to pay a fine of ͅ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r as approver is contrary to Section 306 of the Code. The trial Court even without perusing the previous statement of the approver had treated P.W.14 as an approver and had based conviction of the Accused relying upon her evidence. Without jurisdiction, the Learned II Metropolitan Magistrate, Egmore, Chennai, has granted pardon in the case after the Special Court, constituted to deal with the offence under the Prevention of Corruption Act, 1988, has taken cognizance. Thus, the grant of pardon is in violation of law and the evidence of the approver P.W.14 is non est in law and be totally eschewed. (iii) In addition to the above legal submissions the Learned Senior Counsel appearing for the 1st Accused also submitted that the entire case of the prosecution is a verbatim repetition of the investigation made by DRI and they have virtually lifted the evidence and statements collected by DRI during the course of their investigation and had marked the statements recorded under Section 108 of the Customs Act in the present criminal proceedings initiated under the Prevention of Corruption Act. Though the statement given to the Revenue Officials under the Customs Act may be admissible f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fted to him, he thought fit that he should pay the duty and get the vehicle cleared from Customs. The alleged corrections in the Bill of Entry and other related documents were not carried out by him personally or at his instance. While the prosecution has failed to prove that Account No. 872 in the name of M/s. Tamilarasi Publications, had no Foreign Inward Remittance, contrarily, through P.W.5 it has been elucidated that in the said Account there was Foreign Inward Remittance of USD 2500 which is the subscription made by Foreign Readers of M/s. Tamalirasi Publications Private Limited Puthiya Parvai . It is also contended by the Learned Senior Counsel appearing for the 2nd Accused that the documents collected from the bank are not duly certified as per the Bankers Book Evidence Act to admit it in evidence and most of the documents are photo copy and had been admitted subject to objection but the trial Court has not considered the objection in proper manner while appreciating the evidence. The original First Information Report was only against the officials of Customs Department and the Importer Dr. S. Balakrishnan. But for strange reason the prosecution has dropped the proceedings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der and had permitted the importer to pay Customs duty and take delivery of the car. While the Customs Officials who are mandated under statute to scrutinize the Bill of Lading and Import documents were satisfied and cleared the car and no prosecution has been launched against them for clearing the car it is improper to find fault with the son of the importer who had submitted the documents to the Customs authority and paid the Customs duty as demanded by them. 10. The Learned Senior Counsel appearing for the 4th Accused-Smt. Sujaritha Sundararajan, submitted that the prosecution case against the accused persons is that, they together conspired to import the Foreign Vehicle which does not fall within the definition of permissible goods for import. According to the prosecution the export and import policy of the Government of India relating to import of passenger cars and Automobile vehicle which is marked as Ex.P31, restricts import of car above 1600 CC by Indian Nationals or Foreign Nationals of Indian Origin coming to India for permanent settlement, unless the said importer have stayed abroad continuously for a period of at least two years prior to his coming to India for perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the criminal act of illegality importing Foreign car by producing fabricated document as if it is genuine, is totally baseless. Further, without following the procedure laid under Section 306 of Criminal Procedure Code, the person who has issued the Foreign Inward Remittance Certificate Ex.P10 based on which the vehicle was cleared has been granted pardon. Whereas for no fault of her, Smt. Sujaritha Sundararajan had been arrayed as 4th Accused and held guilty solely based on the tainted evidence of P.W.14. The letter Ex.P10 admittedly had been issued by P.W.14 when the 4th Accused was not in the Bank. The evidence of P.W.14 that she was contacted by the 4th Accused over phone and instructed her to issue Ex.P10 does not carry any truth since P.W.15 Chandrasekar has deposed that P.W.14 consulted him regarding issuance of certificate adding the account number and name of Dr. S. Balakrishnan which were not found in Ex.P11 issued by the 4th Accused. 13. Per contra the Learned Special Public Prosecutor representing the respondent/C.B.I. submitted that the appellants/Accused 1 to 4 who were found guilty of conspiracy for causing loss to the State should be looked differently from or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l and truth disclosure of the whole of the circumstances within his knowledge relating to the offence. In the present case the II Metropolitan Magistrate, Egmore, Chennai, has tendered pardon to the accomplice who was later examined by the prosecution as P.W.14 the order of tendering pardon is marked as Ex.P71. Pardon has been granted after considering the confession given by the accomplice before the X Metropolitan Magistrate, Egmore, Chennai and only after ascertaining that the statement was given voluntarily and knowing about the consequences of the said statement. Under such circumstances, when pardon has been granted after applying the judicious mind there is no need to eschew the evidence. Non-examination of the Magistrate who recorded the confession statement has no bearing in decision making since the maker of the statement has come before the trial Court and had deposed as P.W.14. 17. The Learned Special Public Prosecutor submitted that Ex.P31 is the Public Notice No. 202/PN/92-93, dated 30-3-1994 issued by the Government of India, Ministry of Commerce, prohibiting the import of passenger car above 1600 CC by Indian Nationals or Foreign Nationals of Indian Origin coming ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion it was found that the LEXUS Division of Toyota, London had sold the vehicle to Y. Balu of 3, Shelly Avenue, Manor Park, London E12 6SP and Dr. S. Balakrishnan is the consignee in India and the same was sold by the LEXUS Division of Toyota on 13-7-1994. Since the Government of India Regulation marked as Ex.P31 permits only old car used for more than one year if it is above 1600 C.C. there must be evidence to show that the car which was imported by the accused persons was registered at the exporting country and plying on road for at least one year. Therefore, to show the car was first registered at London one year prior to the date of export the accused has fabricated a document as if the London Central Vehicle Registration Office has issued a letter confirming the registration mark L166 GXP which was assigned to LEXUS G.S 300 car Cylinder capacity 2954 was registered on 15-7-1993 and the registered owner of the car at that time was Swaminathan Balakrishnan. By producing this letter, along with fake sale invoice and false declaration Yogesh Balakrishnan (A-3) had cleared the vehicle using the Bankers Pay Order drawn at Indian Bank, Abiramapuram Branch at the behest of A1 and A2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Public Notice subject to the following conditions :- (i) the payment for the vehicle is made abroad and such payment does not involve, directly or indirectly, any remittance except in the case of category I Importers of foreign exchange from India; (ii) the payment of the customs duty is made in foreign exchange, unless expressly exempted in the case of any particular category of importer in this Public Notice. (iii) the conditions specified against each category of eligible importers in this Public Notice are fulfilled; and (iv) in the case of those importers returning to India for permanent settlement, a declaration to that effect is given to the Customs at the time of the clearance of the car. A. Indian nationals or foreign nationals of Indian origin coming to India for permanent settlement : (a) Import of one passenger car with engine size not exceeding four cylinders and not exceeding 1600 c.c. is permitted, whether the car is new or old. Alternatively, import of one passenger car is also permitted provided the car has been in the use of the importer for more than a year prior to his return to India. (b) The importer has stayed ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ened and operated by A-1 in the Indian Bank, Abiramapuram Branch, Chennai. The Bankers Pay Order is marked as Ex.P6. This is also not disputed by the appellants. In a letter under KVS Scheme the importer Dr. S. Balakrishnan has admitted the violation of Customs Regulations and had paid difference Custom duty. This is evident through the defence document marked as Exs.D2 to D5. After settling the Customs duty under KVS Scheme, the vehicle has been taken back by A-3 on 19-9-1994 under Ex.D6. Thus it is clear that the LEXUS car was imported in violation of Transfer of Residence Provisions for import of a passenger car. 24. According to Export and Import Policy communicated through Public Notice under Ex.P31, yet another condition mentioned in clause 2(ii) is that the payment of Customs duty is to be made under Foreign Inward Remittance unless expressly exempted. The importer in this case Dr. S. Balakrishnan does not fall under exempted category. Therefore, the Customs duty for the said LEXUS car ought to have been paid through Foreign Inward Remittance. The evidence placed before this Court proves to show that the Customs duty for the said LEXUS car was assessed at ₹ 11,94,07 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s or Puthiya Parvai account alone since Ex.P64 letter has been issued in the Letter Head of Puthiya Parvai . But the fact remains that the Bankers Pay Order bearing No. 120764 for ₹ 11,94,074/- was from the remittance in the Current Account No. 872 of M/s. Tamilarasi Publications Private Limited, that account does not have any Foreign Inward Remittance. 27. In this context it is essential to refer Ex.P13, dated 8-8-1994 issued by A-1 in the Letter Head of M/s. Tamilarasi Publications Private Limited, addressed to the Manager, Indian Bank, Abiramapuram Branch, Chennai, wherein he has stated that various remittances made by purchase creditors on 22-6-1994 into the account for a sum of ₹ 12.00 lakhs are related to remittance made by his Foreign buyers of his weekly and Fortnightly Magazines (emphasis added). Ex.P13 which is issued in the Letter Head of Tamilarasi, a Tamil Weekly and Ex.P64 issued in the Letter Head of Puthiya Parvai a Tamil Fortnight Magazine indicates that A-1 was publishing two magazines one weekly by name Tamilarasi and another fortnight Magazine by name Puthiya Parvai and maintaining two different Bank Accounts. His letter dated 8-9-1994 mark ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deposed that while he was working as Import Clerk in Sambasivam Company run by P.W.1 he prepared the Bill of Entry Ex.P2 on behalf of Dr. S. Balakrishnan as per the instructions of P.W.1 based on Ex.P1 Bill of Lading. Declarations under Exs.P3 and P4 were also prepared by him and the same have been identified by him before the Court. The LEXUS car has been allowed to be imported based on these documents. Evidence of P.W.1 and P.W.2 indicates that Ex.P1 was given by A-3 and on the basis of Ex.P1 Bill of Lading, Ex.P2-Bill of Entry and Exs.P3 and P4-Custom Declarations were prepared by P.W.2. Perusal of Ex.P1 Bill of Lading furnished by A-3 to P.W.l at the time of import and Ex.D1 which is relied on by the defence apparently expose the interpolation. In Ex.P.2, second hand (13-7-1993) is written in hand with a few other corrections regarding the value of the vehicle and tax assessable. Obviously the interpolation second hand (13-7-1993) has been made in Ex.P2 to circumvent the Regulations which restricts the import of new car over and above 1600 CC as seen from the Government of India Public Notice marked as Ex.P31. 31. P.W.9 Mr. Ramu the then Deputy Director, Directorate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .W.20 one could have easily seen that the importer has given a declaration to the Customs Department under Ex.P3 that the content of Invoice No. 00077, dated 13-7-1994 of LEXUS Division are true to his knowledge and belief. The importer has also signed the Bill of Entry Ex.P4 wherein he has informed the invoice value as 21,405. He has further given an affidavit Ex.P5 wherein he has declared himself as Citizen of India, the payment to the vehicle was made abroad and it does not require any direct or indirect Foreign Inward Remittance from India. He being continuously residing abroad since 1973 had returned to India for permanent settlement on 4th September, 1994. He has given an undertaking that the car will be registered in his name after its clearance. Along with this affidavit he has also given a separate declaration to the same effect. The sales invoice furnished by the importer to the Customs Department and the first registration certificate alleged to have been issued by London Central Vehicle Registration Office dated 24-8-1994 were proved to be fabricated since the LEXUS car as described in the Bill of Lading Ex.P1was sold only on 13-7-1994 even as per the declaration sign ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... since the statute has promised immunity from all prosecution under all law. Hence the trial Court ought not to have proceeded further after the Custom Department has collected the differential Customs duty and returned the car to A-3. Relying upon Sections 90, 91 and 95 of KVS Scheme, 1998, the Learned Senior Counsel tried to impress upon this Court the proceedings in this case is a futile exercise. 38. The Learned Special Public Prosecutor appearing for the respondent CBI, brought to the notice of this Court that the above contention is fallacious and already been agitated by the first accused and negatived by the Hon ble Supreme Court as early as 2008. The judgment of the Supreme Court in M. Natarajan v. State by Inspector of Police, SPE, CBI, ACB, Chennai reported in (2008) 3 SCC (Crl.) 507 was relied by the Learned Special Public Prosecutor. Since this judgment has discussed the extent of immunity given under the scheme and person who are entitled for the said immunity. The relevant portions of the judgment is extracted below :- 26. It will be, therefore, our task first to examine the provisions of KVS Scheme and more particularly, Section 90, 91 and 95. Sections 88 to 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not only the declarant but any other person and the prosecution not only under the direct tax enactment or indirect tax enactment but any and every other offence also. It is for this purpose, that the Learned Senior Counsel, Shri K. Subramanian heavily relied upon the observations in paragraph 27 of Hiralal s case. The Learned counsel also relied on the concurring and supplementing observations by Hon'ble Brijesh Kumar, J., in which, the Learned Judge has made a specific reference to Section 95 after quoting that Section. 30. We were taken extensively through this judgment by the Learned counsel who was at pains to urge that the factual scenario in Hiralai s case is comparable to the present case, if not identical. There also, the High Court in a petition under Section 482 Cr.P.C. had refused to quash the FIR and the proceedings which were taken against the Director of Gujarat Cancer Research Institute (for short GCRI ), Secretary of Gujarat Cancer Society (GCS) and one Dr. Viral C. Shah. It was the case of the prosecution that the three had cheated the Government of India in terms of the evasion of customs duty and by concealment of facts obtained customs duty exemption ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and after the challenge, failed at the High Court level, and the party had successfully approached this Court the proceedings were ordered to be quashed. 31. In Hiralal s case heavy reliance seems to have been placed on the judgment of Sushila Rani (Smt.) v. Commissioner of Income Tax Anr. and of Central Bureau of Investigation, SPE, SIU (X), New Delhi v. Duncans Agro Industries Ltd., Calcutta. The Learned Judges in their separate but concurrent judgments upheld the challenge and had quashed the proceedings relying on the KVSS, 1998. The Learned Judges noted the various provisions of the Scheme from Sections 86 to 98. It was also noted that FIR in that case was filed on 6-1-1999, while the certificate under KVSS, 1998 was issued on 19-7-1999. Hon ble Lakshmanan, J. in paragraph 23 observed : 23. It is thus crystal clear that the Commissioner of Customs (Adjudication) and Designated Authority (KVSS-98) granted immunity from instituting any proceeding for prosecution for any offence under the Customs Act, 1962, or from the imposition of penalty under the said enactment, in respect of matters covered in the aforesaid declaration made by the declarant. After hearing the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said relied upon case was a case of duty evasion and the appellant therein was booked by Customs Authority and therefore, customs duty was paid under KVS Scheme and further in the criminal proceedings under Sections 120-B and 420 IPC initiated by CBI was quashed by this Court. Therefore, it is admitted that the above cited case is different from the present case as in the case in hand the detention order was issued under the COFEPOSA Act against the petitioner with objective to prevent the nefarious activities in future. Therefore, the immunity granted by the Settlement Commission from fine, penalty and prosecution under the provisions of the Customs Act and IPC have no bearing on the order of detention passed under the COFEPOSA Act. Therefore, it is contended that the detention order issued by the detaining authority is very much legal and the same needs to be upheld. 47. The Settlement Commission was constituted with the aim and objective of settling the tax evasion issues and by virtue of disclosure by tax offender, they gain immunity from fine/penaity which is otherwise mandatory under the provisions of tax laws. But, such opportunity is only extended to one-time tax off ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the immunity under the KVSS, 1998 does not refer to the offences under the Penal Code or under any other central law, but restricts itself under Section 90(1) only to the offences under the direct tax enactment or indirect tax enactment and as such Section 127H of the Customs Act is much broader than Section 90(1) of Finance Act in its operation. 34. It may be noted further that in Hiralal s case the Learned Judge had specifically found that there was no prima facie material as regards the offences under Sections 120B and 420 of the Indian Penal Code and that was also the reason why the prosecution was quashed. Such is not the case here. It cannot again be forgotten that in Hiralal s case the immunity was granted to the tax-payer whereas the appellant in the present case was neither an applicant under Section 90(1) nor was any immunity granted to him specifically. (emphasis added). 37. In the above case, CBI v. Duncans Agro Industries Ltd. the question was whether the immunity granted under the KVSS, 1998 could also cover proceedings under the Kerala Sales Tax Act in respect of the same assessee. The Learned Judges again referred in paragraph 15 to Sushila Rani s case as al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the trial. The Magistrate who has examined the person tendered pardon shall without making any further enquiry commit it for trial to the Court of Sessions or to the Court of Special Judge appointed under Criminal Law Amendment Act if the offence is triable exclusively by that Court and in all other cases shall make over the case to the Chief Judicial Magistrate who shall try the case himself. In this case the Magistrate who has tendered pardon has not passed reasoned order and further he was not examined as a witness. Therefore, the pardon proceedings in respect of P.W.14 is illegal and her evidence should be eschewed. 40. Whereas the Learned Special Public Prosecutor contended that the pardon proceedings of the Magistrate is marked as EX.P71. The confession statement was recorded by X Metropolitan Magistrate had been put to the witness. He has forewarned about the consequence and only after ascertaining that the confession statement is voluntarily and true, pardon has been granted to the approver (P.W.14). Therefore, the evidence of P.W.14 cannot be eschewed as pleaded by the counsels for the appellants. 41. Ms. Bhavani, Manager of Indian Bank, Abiramapuram Branch, Chennai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings are neither in nor before any Court at that stage. But there is no such deeming provision under Section 39 of FERA bringing every investigation or proceeding in its ambit as a judicial proceeding within the meaning of Sections 193 and 228 of the Indian Penal Code. When it is so, as rightly pointed out by Mr. A.T.M. Sampath, the statements recorded under Exhs. P 39 and P 40 cannot be brought as having been recorded in a judicial proceeding so as to make use of them as the basis for fastening the makers of those statements with the criminality of the offences under Sections 193 and/or 228 of the Indian Penal Code on the ground that the deponents of those statements have retracted from their earlier statements in a subsequent proceeding which is deemed to be a judicial proceeding . 23. It is pertinent to note in this connection that in the manner of recording a statement under Section 40 of FERA there are no safeguards as in the case of recording a statement of an accused under Section 164 of the Criminal Procedure Code by a Magistrate. Nevertheless, before receiving that statement in evidence and making use of the same against the maker, it must be scrutinised to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . If it is to be approved and held that the authorities under the I.T. Act can launch a prosecution for perjury on the basis of a statement recorded by the Enforcement Officer then on the same analogy the Enforcement authority can also in a given situation launch a prosecution for perjury on the basis of any inculpatory statement recorded by the Income tax Authority, if repudiated subsequently before the Enforcement authority. In our opinion, such a course cannot be and should not be legally permitted. 30. Leave apart, even if the officers of the Enforcement intend to take action against the deponent of a statement on the basis of his inculpatory statement which has been subsequently repudiated, the officer concerned must take both the statements together, give a finding about the nature of the repudiation and then act upon the earlier inculpatory one. If on the other hand, the officer concerned bisect the two statements and make use of the inculpatory statement alone conveniently bypassing the other such a stand cannot be a legally permissible because admissibility, reliability and the evidentiary value of the statement of the inculpatory statement depend on the bench mark of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Therefore, the contention of the Learned Counsels for the appellants to reject the documents relied by the prosecution which was collected by DRI and the statements of the accused persons to DRI officials is not sustainable. It is the credibility of the person to whom the confession made matters and not the act under which the statement made when there is no statutory bar, as in case of Statement to Police u/s 161 Cr.P.C. In any event de hors of those statements there is ample evidence placed before the Court by the prosecution to show that these accused persons have involved in cheating the Government by producing forged documents and by issuing false certificate enabling A-1 and A-2 to clear brand new LEXUS car Cubic Capacity of 3000 CC. which is not in compliance with the Residence Transfer Provision. 46. In this connection this Court is of the opinion that though the appellants counsel tried to pick holes in the prosecution case alleging that the prosecution has not proved beyond doubt that they all joined together and conspired to cheat the State, it is essential to remember that if the allegations made by the prosecution is incorrect and contrarily, if the car which was i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e limitation is the reason for the law or conduct which limits the right. 42. The presumption raised in a case of this nature is one for shifting the burden subject to fulfilment of the conditions precedent therefor. 43. The issue of reverse burden vis- -vis the human rights regime must also be noticed. The approach of the Common Law is that it is the duty of the prosecution to prove a person guilty. Indisputably this common law principle was subject to parliamentary legislation to the contrary. The concern now shown worldwide is that the Parliaments had frequently been making inroads on the basic presumption of innocence. Unfortunately unlike other countries no systematic study has been made in India as to how many offences are triable in the Court, where the legal burden is on the accused. In the United Kingdom it is stated that about 40% of the offences triable in the Crown Court appear to violate the presumption. (See - The Presumption of Innocence in English Criminal Law, 1996 Crim.L.R. 306, at 309). In this case, the prosecution has proved the charges positively whereas though the accused persons had opportunity to discharge the burden has not availed it, obviously ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minds and unity of purpose between the conspirators to do that illegal act or legal act by illegal means. Conspiracy itself is a substantive offence and is distinct from the offence to commit which the conspiracy is entered into. It is undoubted that the general conspiracy is distinct from number of separate offences committed while executing the offence of conspiracy. Each act constitutes separate offence punishable, independent of the conspiracy. The law had developed several or different models or technics to broach the scope of conspiracy. One such model is that of a chain, where each party performs even without knowledge of other a role that aids succeeding parties in accomplishing the criminal objectives of the conspiracy. An illustration, of a single conspiracy, its parts bound together as links in a chain, is the process of procuring and distributing narcotics or an illegal foreign drug for sale in different parts of the (globe. In such a case, smugglers, middlemen and retailers are privies to a single conspiracy to smuggle and distribute narcotics. The smugglers knew that the middlemen must sell to retailers-, and the retailers knew that the middlemen must buy of importers ..... X X X X Extracts X X X X X X X X Extracts X X X X
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