TMI Blog1990 (4) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused preferred an appeal to the Court of Sessions at Greater Bombay and the learned Additional Sessions Judge acquitted the accused allowing the appeal. 3. The prosecution case was that the accused had arrived at Bombay Air-port from Manila by Air France flight on the night between 11-1-1981 and 12-1-1981, that on arrival she presented her baggage at the customs counter and baggage consisted of two suit-cases and one wheeler bag, that on examination of the baggage, the Customs Officer found some dutiable and restricted goods in the baggage, that the officer asked the accused to make a declaration about the baggage as they suspected her, that the accused however told that she had nothing to declare except the personal effects in her baggage and jewellary on her person, that the Customs Officer in the meanwhile felt that the accused had kept a black handbag on the floor surreptitiously and, therefore, she was asked to declare the contents of that handbag and she is alleged to have stated that there was nothing to declare in the same, that the cursory examination of the handbag by the officer disclosed that there were two Rado wrist watches at the bottom under other items, wra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulations prescribed by the Board and that it was mandatory on the part of the Customs Officers to issue the said form to each passenger and get the declaration in respect of the articles forming part of the baggage imported by the passenger. It was also contended that form No. 37 is not a mandatory form required to be got filled in from every passenger and in fact the said form is not actually used at the air-port and, therefore, the learned Additional Sessions judge erred in concluding that the mandatory form provided under the regulations having been not got filled in from the accused, the accused had no opportunity to declare the articles which were contained in the handbag. 5. Now, it is an admitted position that some jewellery was found in the handbag carried by the accused. It is also an admitted position that Rado Wrist Watches were also found in the said handbag. There is some dispute about the position in which the jewellery was found in the hand bag. The prosecution alleges that the said jewellery was found concealed in the lining of the base of the hand bag while according to the accused the said jewellery was not concealed at all but was in the handbag. As far as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the fact that no form was provided to the accused for making a declaration the defence of the accused was plausible and, therefore, the accused was acquitted. It was also contended on behalf of the prosecution before me that in the statement of the accused recorded under Section 108 of the Customs Act, the accused actually has confessed that she had brought the jewellery and had not disclosed the same. She also confessed about the concealment of two wrist watches in the handbag. The statement shows that she stated before the Customs Officer that after completing the immigration, she was allotted counter No. 6 and at the counter No. 6 however she was directed to go to the counter No. 2 for examination of her baggage and at counter No. 2 the very Customs Officer and also other officers asked her whether she had any gold or gold jewellery or diamond jewellery on her person or kept or concealed in her baggage and she had declared pearl necklace, gold bangles, diamond ring and diamond ear-rings which were on her person and one gold Omega wrist watch which was worn by her. She further stated that the officers had a cursory look in her purse in which they noticed two Rado wrist watches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Swami Gangeshwar as it was his 100th birth anniversary on that day. On behalf of the state, it was tried to be contended that the learned Additional Sessions Judge was in error in holding that the said statement was not voluntary. It was also contended that the learned Additional Sessions Judge had discarded the said statement and had accepted the statement of the accused under Sec. 313 of Criminal Procedure Code and in fact there was absolutely no circumstance on the face of which one could come to the conclusion that statement recorded before the Customs Officer was not voluntary statement and that she was actually forced to sign the statement which was written down by the customs officer, Shri Gupte who appears on behalf of the State tried to contend that the details which have been given in the said statement of the accused indicates that the said statement is a truthful one and learned Chief Metropolitan Magistrate was right in holding that the said statement could be relied upon as corroborative place of evidence to the evidence led by prosecution witnesses and on the other hand the learned Additional Sessions Judge was in error in discarding the said evidence. It appears th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scation under the provisions of Customs Act, 1962" On behalf of the state, it was contended by Shri Gupte that the statement though is recorded in the narration form it is actually the replies given by the accused to the questions that were put and therefore, the said answers recorded in the statement when the accused had replied in affirmative has created the said anomaly on the basis of which one could say that the accused could not have made a statement referred to above. Shri Gupte, however, tried to contend that there are number of other details in the statement which could not have been known to the customs officers at all and it clearly indicates that whatever was stated by the accused was actually written down in the form of the statement. It was also contended that merely because there were some four officers of the customs department who were examining the baggage and questioning the accused, it could not be inferred that the accused could not have been in the state of mind to give correct statement before the Customs Officers. Now, it does appear that there are certain statements made by the accused in respect of the earlier travel to India in 1975. Similarly there are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulations framed under the powers delegated either under Sec. 81 or 157 of the Customs Act. Therefore, I am inclined to conclude that the said form could not be said as one prescribed under the rules or regulations. At the most one can hold that the form for declaration of the baggage is provided in the Manual as per Appendix C. On behalf of the State, it was tried to be contended that as per the guidelines given by the Government of India, form No. 37 is not required to be used at the air-port and reliance was tried to be put on guidelines which are given in para IV: 1.6 under the heading "Baggage Declaration Form - Revision of" and para IV : 1.7 under the heading "Systematic Approach". Reliance is also placed on guideline given in para IV : 1.5 under the heading "Oral Declaration". Now, under the heading "Oral Declaration" it is provided that by the orders contained in the CBR letter No. 431/10/55, Cus. IV, dated 6th July, 1955, it was decided to clear the air passengers (arriving at Santacruz) on oral declaration and the written declaration was done away with. It further provides that in order to acquaint the passenger with the regulations, placards were made available by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation reduced to writing; (ii) there was a prima facie offence and adjudication proceedings had to be initiated." Relying on this Shri Gupte on behalf of the State tried to contend that considering the inflow of the passengers at the air-port, the system of getting a declaration form filled in was abandoned long back in 1955 and, therefore, one cannot say that getting the declaration filled in in form No. 37 is mandatory provision. As against this on behalf of the accused it was contended that even if it is assumed for a moment that the provision in respect of the form No. 37 is not a mandatory one, at least it is clear even from the guidelines relied upon by the learned counsel appearing for the State that if passenger was suspected and it was considered desirable to get his declaration in writing, form was required to be filled in. It was also contended that in the present case there is evidence to show that the accused was suspected and prima facie offence and adjudication proceedings were to be initiated against her and, therefore, in the present case at least it was incumbent even as per the guidelines given to the customs officers to ask the accused to fill in the declara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs officers including the recording of the statement of the accused under Section 108 of the Customs Act. Now, it appears that in the two decisions cited by Shri Jagtiani there were trade notices and they provided for classification of parts and acting upon the said classification the manufacturer of certain items had relied upon the said trade notice and, therefore, it is held that once it was held that once it was made clear to the people by issuing the trade notice whatever was stated in the trade notice had binding effect on the department and they could not go back on the same. It is on the principle of estoppel that in the said matters the Court concluded that department could not go back on the said trade notice and they would be estopped from contending otherwise. In the present matter the instructions which were given are only guidelines and once they are considered as guidelines they cannot be considered as instructions having a mandatory effect. At the most they could be considered as directive and in the present case if the accused would have been provided with a declaration form and thereafter her search would have been taken, much controversy in respect of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... form No. 37 was not taken, it cannot be said that the entire seizure should be discarded as unreliable. It is also difficult to accept on the face of evidence of Mr. Rego that the accused had no opportunity to make a full declaration of the articles which she possessed as contended by her. 8. On behalf of the accused, it was tried to be contended before me that the entire approach of the Trial Court is biased and that is apparent from the tenor of the judgment and the observations made by the Trial Court and it definitely indicate that he had developed some prejudice against the accused because of her wealth. There is some substance in this contention. No doubt, certain observations made by the learned Chief Metropolitan Magistrate were actually uncalled for. But that by itself is not sufficient to discard the findings given by the Trial Court if they are substantiated by the evidence on record. 9. There is no dispute that some jewellery as claimed by the prosecution and two wrist watches were found in the hand purse of the accused. The contention of the accused in respect of the said articles in her statement under Section 108 of the Customs Act recorded by the customs officer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... market in Bombay. It also appears that he inferred from that the accused had brought these articles not for personal use but for either giving it to her relatives in India or selling the same. It was not necessary at all to consider that aspect in the present case. The learned Additional Sessions Judge on the other hand was in error in rejecting the entire evidence led by the prosecution without any substantial and cogent reason for the same. As stated earlier, the view taken by the learned Additional Sessions Judge that filling in of form No. 37 was mandatory and on the basis of which, he has concluded that a mandatory provision was not complied with and, therefore, the contention of the accused that she was actually searched before she could make a full and complete declaration was possibly true and, therefore, the prosecution had failed to establish the guilt of the accused is not correct. 10. On behalf of the accused, it was tried to be contended before me that in the case where the accused is acquitted and in appeal against the order of acquittal the Appellate Court should be slow in disturbing the finding of innocence of the accused which is buttressed by the finding given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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