TMI Blog1980 (11) TMI 60X X X X Extracts X X X X X X X X Extracts X X X X ..... a leather bag of the first accused and saw a blue cloth bag which was also found to be heavy. P.W. 1 brought the first accused and the second accused and the parcel, the blue cloth bag and also the leather bag to the search room. They were searched in the presence of independent witnesses and in the presence of the first accused and the second accused. The white paper parcel contained a blue cloth bag and the blue cloth bag contained seven bars of gold without any markings and they were found to weigh 1833 grammes. The blue bag in the leather bag contained three gold bars, one of which weighed 160 grammes and bore the markings "D.L. SOA/G" written in a piece of paper and attached to the bar with an adhesive tape. The other two bars have no markings and found to weigh 195 grammes and 79 grammes. There was also a white slip of paper with some marks and a blue paper packet containing two travellers' cheques for the value of U.S. Dollars 20 each and the passport of Leslie Bertram D'Silva, the first accused, and also his vaccination certificate. A letter written in Tamil and in code was also found kept underneath it. On interrogation, the first accused admitted that the two cloth bags c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... convicted A. 1 under Section 135(1)(a)(i) of the Customs Act and sentenced him to undergo rigorous imprisonment for nine months and also to a fine of Rs. 500. He also ordered set-off of "the period of detention undergone by him during the investigation and the trial of the case." He found A. 2 not guilty of the offence with which he was charged and acquitted him. He also acquitted A. 3. The Assistant Collector of Customs has preferred C.A. No. 543 of 1977 against the order of acquittal of A. 1 and A. 2 in so far as M.O. 3 series are concerned. Criminal Appeal No. 544 of 1977 is preferred by the Assistant Collector of Customs questioning the adequacy of sentence imposed on A. 1. The first accused has filed Criminal Appeal No. 830 of 1978 challenging his conviction and sentence. Criminal R.C. No. 579 of 1977 is filed by the Assistant Collector questioning the order under Section 428 of the Code of Criminal Procedure setting off the period of detention. 4. The facts narrated show that the aircraft No. 4R-ACN of Air Ceylon arrived at Meenambakkam Airport, Madras at about 11.20 A.M. on a scheduled flight AE 323/324 from Colombo on 31-7-1975. P.W. 1, Sriramamurthi, went on board the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one cannot come to the conclusion that P.W. 1 is a witness on whose evidence reliance cannot be placed. If his evidence, so far as recovery of gold bars is concerned, finds sufficient corroboration in the evidence of other witnesses and from other circumstances, there is no reason to discard his evidence. P.W. 4, Vijayaraghavan, Aviation Superintendent, Indian Oil Corporation, stated that P.W. 1 and another official requested him to be present to witness a search of leather bag of a pilot on 31-7-1975 and that in his presence, the leather bag was opened and a blue cloth bag was recovered and the blue cloth bag was heavy and it contained three gold bars. He again stated that the blue bag was opened and it was found to contain three gold bars. (Obviously the deposition has been recorded by mistake. It should be noted that the paper packet containing the blue cloth bag contained seven gold bars.) But his evidence shows that this preliminary examination was made in the first class compartment of the aircraft where P.W. 4 has gone to make entries in the log sheet in regard to the filling up of the aircraft with fuel. But the evidence of P.W. 1 in cross-examination, on the other hand, wo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o airport along with other officers and at about 2.00 P.M. A. 1 gave a statement, Ex. P. 8, in English singed by him and then he returned to the Customs House and at about 6.00 P.M. A. 2 gave a statement Ex. P. 9 voluntarily. Most unfortunately the Chief Metropolitan Magistrate holds that the prosecution has failed to prove that the statements, Exs. P. 8 and P. 9 are voluntary. No acceptable reasons are furnished by the Magistrate for holding that these statements are not voluntary. One of the reasons is that at the end of the confession statement the first accused has stated that he "committed this mistake due to the circumstances in which he was placed", and the second accused has stated that he "knows that it is an offence to help in the smuggling of gold in the aforesaid manner" and that normally persons do not make such confessions and that by itself clearly indicates that the statements are not voluntary. Though the learned Magistrate holds that the mere fact that all the accused used identical words to convey the same meaning, it cannot be said that they are involuntary statements", still he comes to conclusion that these statements are not voluntary. He finally says that on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... M.O. 5 series, were recovered from the blue cloth bag which was found inside the leather bag of the first accused. The mahazar, Ex. P. 5 was also recorded in the presence of the first accused. 6. It is next contended for the defence that P.W. 4 now states that a mahazar was prepared by Sriramamurthi and he attested the same, that P.W. 1 did not tell him as to what happened before he singed in the mahazar, but the mahazar, Ex. P. 5, shows that the attestors ascertained from A. 1 and A. 2 whether the narration was correct and that the statement that the witnesses so ascertained from A. 1 and A. 2 as to the correctness of fact was "sneaked" into the mahazarnama, and therefore, P.W. 4's evidence is in conflict with the narration in Ex. P. 5 and P.W. 4 should not be believed. In the first instance, it should be noted that Ex. P. 5 was recorded by P.W. 1, Sriramamurthi. It is not clearly understandable as to how P.W's evidence is in conflict with the recitals in Ex. P. 5. It may be that P.W. 4 in his evidence omitted to state that he and other attestors ascertained from A. 1 and A. 2 about the correctness of the facts. But that by itself will not be a circumstance to discredit the test ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m behind and caught hold of A. 2's hand and immediately he dropped the packet in the cockpit and that he picked up the parcel. The Chief Metropolitan Magistrate, who made an inspection of the aircraft, has made the following observations for holding that Sriramamurthi, P.W. 1, could not have seen the first accused handing over the paper packet to the second accused. He observes : "It is not disputed by the prosecution that if a person was standing just near the wooden door leading to the cockpit, any person standing in between the two rows of the first class compartment cannot see anyone sitting inside the cockpit. So, in my opinion, P.W. 1, Thiru Sriramamurthi, could not have seen the first accused handing over the paper packet to the second accused and it is impossible for him to catch hold of the hand of the second accused before he actually dropped the packet." This finding of the Magistrate was recorded after the inspection and there is no reason to take a different view and hold otherwise. In view of the contradictory and conflicting evidence of P.W. 1 as regards the recovery of the paper packet containing seven gold bars, it would not be safe to rely solely on the statem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision shows that the respondent first accused was detained under the COFEPOSA Act on 24-12-1975 and was released on 24-3-1977. Neither the grounds of revision, nor the learned Prosecutor for the Central Government furnished me with any particulars about the detention of A. 1 under the COFEPOSA Act. (The particulars are gathered only from the docket of the records of the lower court). The judgment shows that the first accused respondent was arrested on 31-7-1975 and he was actually released on bail on 3-9-1975. Therefore, he was in detention with reference to this case for about 34 days. While he was on bail, he was arrested under the COFEPOSA Act on 24-12-1975. It is also seen from the records that the complaint was filed on 10-6-1976. At the time of filing of the complaint, the respondent first accused was already in prevention detention (under the COFEPOSA Act). He was produced before the Magistrate on 23-7-1976. This date is gathered from the lower court records. The Magistrate furnished copies of the complaint and adjourned the case for trial on 5-8-1976 and remanded A. 1 to A. 3, till then. The first accused respondent was released from preventive detention on 24-3-1977, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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