TaxTMI 
TaxTMI 
2020 (1) TMI 510
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....d Imports and Exports (Control) Act 1947. 3. The case of the prosecution in brief is that on 4th February 1991, on the basis of specific information received by the Officers of Directorate of Revenue Intelligence, Bombay Zonal Unit, to the effect that respondent no.1 was dealing in Foreign marked gold biscuits in large scale and respondent no.1 receives contraband gold, its sale proceeds in the form of foreign and Indian currencies and stores the same in a room situated on the 3rd Floor of 12-V.C. Co-operative Housing Society, 36-A, Champa Galli Cross Lane, Mumbai 20 (the said premises), the Officers of DRI and the Officers of appellants effected a raid and search of the said premises and respondents were found in the said premises. After thorough search of the said premises in presence of the panchas, the officials recovered 24 marked gold biscuits each weighing 10 tolas, large quantities of foreign currencies of various denominations of different countries equivalent to Indian Rs. 5,88,750/- and Indian currency in the sum of Rs. 5,06,000/-. Both respondents failed to give satisfactory explanation for the possession of those 24 marked gold biscuits and Indian and Foreign currency....
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.... in to corroborate what the other two witnesses have stated. I would have expected appellants to call those two persons also to give evidence in view of the absence of panch witnesses. 6. I have to note very importantly that on 11th February 1991 respondents filed an application before the Learned Metropolitan Magistrate for retracting the statements recorded. Their case has also been stated in the statement of retraction and it is very clearly stated that there were three others who were in the room. In the evidence, PW-1 and PW-2 are totally silent about these three persons. In response filed to the application of retraction, M.K. Chakraborty, who was listed as the first witness in the chargesheet and who was not called to give evidence, has categorically stated that there were three other persons. In the retraction, the respondents have stated that they went to the room and they found three persons inside the room but in response to the retraction, M.K. Chakraborty says "for the statement of other three persons, who were found loitering in the passage adjacent to the said room ...........". I would say this is a mischievous statement because the respondents in their retraction ....
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....that N.M. Joshi Marg was 4 to 5 km. away from the said premises. How did the panchas then land at the said premises? That is a mystery. Therefore, I am unable to believe the panchnama as produced was really prepared. To add to this, PW-2 says he does not know the details of panchnama because he was not party to panchnama. PW-2 also says PW-1 had called the panch witnesses and they were taken from "our" office to the said premises. If that was so, why were the panch witnesses not examined. PW-2 also says, though he was a member of the search party, he does not remember the mode of transport that was used to go to the said premises from their office. One can understand he may not remember the vehicle details but "mode of transport" is unbelievable. If I have to accept the submission of Ms. Mane that dehors the panchnama, in view of the confession recorded under Section 108, the Court can still convict the accused, then I ask myself why should they even take any panch witness and why should any one go through the trouble of recording of panchnama and producing the panch witness at the time of trial. Moreover, if I have to simply accept the statement recorded under Section 108 as gospe....
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.... on 24th March 1996 under Section 108 of the Customs Act, the statement in isolation do not warrant conviction, particularly when it is retracted with a plea of coercion." 10. Ms. Mane relied on the judgment of the Apex Court in Ramesh Chandra V/s. State of West Bengal AIR 1980 Supreme Court 793 to submit that customs officers are not police officers and the statement recorded under Section 108 of the Customs Act 1962, is admissible in evidence. I have to be candid that I have no quarrels with the preposition submitted by Ms Mane. The issue is, Can that statement be accepted blindly without corroboration, and the answer is no. 11. One more point which comes to my mind is if the panch witnesses have not been produced, what is the evidence to satisfy that the said premises is where the respondents were found. I have to also note that an electricity bill in the name of Jayantilal Pandya has been seized from the said premises by prosecution. The said Jayantilal Pandya has not been summoned and no effort has also been made to trace this Jayantilal Pandya. The prosecution should have also, particularly when there were some other persons present when the raid took place, collected docum....
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....m 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 by the trial court." 13. The Apex Court in Basalingappa V/s. Mudibasappa 2019 (5) SCC 418 has explained the word "perverse" in terms as understood in law for this Court to interfere in an order of acquittal. Paragraph 31 of the said judgment reads as under : 13. This Court had occasion to consider the expression "perverse" in Gamini Bala Koteswara Rao and others Vs. State of Andhra Pradesh through Secretary, (2009) 10 SCC 636, this Court held that although High Court can reappraise the evidence and conclusions drawn by the trial court but judgment of acquittal can be interfered with only judgment is against the weight of evidence. In Paragraph No.14 following has been held :- "14. We have consider....