TMI Blog2019 (12) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... med and strengthened by the trial Court. For acquitting the accused, the Trial Court observed that the prosecution had failed to prove its case. The evidence has been common. Moreover, when the appeal against accused nos.2 3 is being dismissed, I see no reason why the appeal acquitting of accused no.1 which was separated should also not be disposed. The appeal including appeal which was separated for accused no.1 stands dismissed. - CRIMINAL APPEAL NO.796 OF 1997 - - - Dated:- 5-11-2019 - K.R. SHRIRAM,J Ms. Anuradha Mane for appellant. Mr. S.R.Phanse for respondent no.2. Mr. Amin Solkar i/by Mr.H.A.Solkar for respondent no.3. ORAL JUDGMENT:- 1. This is an appeal filed under Section 378(2) of the Code of Criminal Procedure 1973 against the order of acquittal dated 21.7.1995 (the impugned judgment) passed by the learned Addl. Chief Metropolitan Magistrate, Ballard Pier, Mumbai in C.C.No.90/CW/1995. 2. The appellant is the Assistant Commissioner of Customs (Preventive), Mumbai. The appellant had filed a criminal case against three persons who are respondent nos.1, 2 3 viz. (1) Siraj Badruddin Pirani alias ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only the statement was not read over but he was also assaulted. Statements recorded under Section 108 have been retracted by the accused. Reliance was placed by the learned Advocate for the appellant to submit that the statement under Section 108 was admissible in evidence and based on that statement witness can be prosecuted. Counsel for respondents in fairness agreed that a statement recorded under Section 108 of the Customs Act 1962 was certainly admissible in evidence but that does not mean that the prosecution does not have to prove anything. Counsel rightly submitted that if that was the case then where was the need to record any evidence or cross-examine the witnesses. A simple production of the statement recorded under section 108 and the accused admitting their signatures in their statements should have been enough and the trial should have come to an end at that stage. I cannot agree more with the counsel for the respondents. 6. According to appellant, on the basis of specific information, the officers of Marine and Preventive Wing of Customs maintained surveillance of the departure area of Terminal 2-A, Sahar International Air Port of Bombay at early hours of 15 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found. When it was opened the rolls contained foreign currency equivalent to Indian ₹ 1,50,004/-. 9. On the personal search of three accused, officers recovered Indian currency of ₹ 5000/- ₹ 1,000/- and ₹ 2,000/- from the accused nos.1, 2 3, respectively. The total amounts seized including foreign and Indian currency was ₹ 5,62,644/- and these currencies were seized under panchanama in the reasonable belief that it was being smuggled out of India in contravention of the provisions of section 13 of the Foreign Exchange Regulation Act 1973, and they were liable to be confiscated under the provisions of Customs Act 1962. 10. The prosecution after the charge was framed, led evidence of 5 witnesses. PW-1 C.Sunder Raj who had caught the 3 accused at Sahar International Air Port. PW-2 is one M.V.Nair, Supdt. of Customs (Preventive) attached to Marine and Preventive Wing who had recorded statements of accused nos.1 2. PW-3 is one B.B.Mohite, Supdt. of Customs (Preventive) who had accompanied PW-1 along with Assistant Collector of Customs Shashank Priya to the Air Port when the 3 accused were apprehended. PW-3 also was examined to show ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppa Ors. V/s. State of Karnataka (2007) 4 SCC 415 in paragraph 42 has laid down the general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal. Paragraph 42 reads as under : 42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge; (1) . (2) . (3) . (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s at the air port and they did not find it suitable for conducting examination. PW-1 has also stated that it was also difficult to get panch witness at the air port and when they have to be produced for giving evidence, they do not turn up. He has no explanation how the panch witnesses who were found near the city office were more reliable. Prosecution has also not explained why they could not have taken the accused to the office of Assistant Commissioner of Customs at the air port or to the office of air Unit at the air port to open the bag and to search the accused. Instead they brought the accused from the air port to the city office which was at a distance of 30 to 45 k.m. There are no vehicle details also produced by the prosecution as to in which vehicle accused were brought and who were with the accused in that vehicle. (iii) The other glaring error is accused were found to be carrying bags and pouches when they were apprehended. If it was after the immigration, certainly those bags or pouches should have hand baggage tags with the rubber stamp of the air port security. No hand baggage tag has been produced in the evidence. (iv) Panch witness PW-5 has c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that balloon was Exh.P2. But when one examines Exh.P-2 there are various pieces of balloons of 4 different colours and 3 knots of balloons of different colours. Exh.P-2 is not of just one orange colour ballon but there are 4 different balloons with 4 different colours. I fail to understand if accused no.1 has ejected only one balloon containing foreign currency, from where prosecution finds 4 balloons of 4 different colours and 3 knots of balloons of different colours. All these factors create doubt in the mind of this Court on the truthfulness of the case of the prosecution. (vi) Moreover, PW-5 has in his cross-examination has stated he does not understand English and the other panch witness Shetty did not narrate or explain the panchanama while it has been written. PW-5 stated that purely relying on the statement of Shetty, who has not been examined, that what is written in the panchanama, is correct, PW-5 signed the panchanama. PW-5 also stated that he has never seen foreign currency notes prior to the date on which he was called as a panch witness. In response to a question put as to how does he say those were foreign currency notes, PW-5 stated since Custom offic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as one balloon or 4 balloons. He also stated he does not remember whether the statement of accused no.2 was in consonance with panchanama and property seized. In his cross-examination PW-2 has also admitted that the property is not properly described in the panchanama. He has also said he never asked PW-1 who was the scribe to correct the panchanama to tally with the property found. In response to a question as to whether the original panchanama was shown to accused no.2, he says it was not shown. But in the panchanama, there is a statement of accused no.2 having received copy of the panchanama. PW-2 also said though he has taken details of the visits of the accused to Bangkok, he has not seized any visa or passport of accused no.2. There is a statement of accused no.2 that he visited UAE 7 times but the passport of accused no.2 does not show any visa endorsement. In fact, there is no visa endorsement even for Bangkok and it is common knowledge that even a boarding pass is not issued without a passenger having Visa. (ix) Moreover, there is nothing on record what was the specific information that was received against the accused and how the complainant identified that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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