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Judgment
N. Ananda, J.—This appeal is filed by the Assistant Collector of Customs (Preventive), New Custom House, Mangalore, through Senior Central Government Standing Counsel against acquittal of respondents/accused 3 & 4 (hereinafter referred to as accused 3 & 4) for an offence punishable u/s 135(1)(b) of the Customs Act, 1962 (for short, ''the Act''). Accused No. 1-Prabhakar Shetty died even before summons was served on him. Accused No. 2-Leo Sequeira was absconding, therefore, case against him was separated. Accused 3 & 4 were tried and acquitted for aforestated offence.
It is the case of prosecution that on 12-1-1993 at 7 p.m., on receipt of credible information about smuggling of silver bricks, detecting party consisting of PW2-S. Padmanabhan, PW3- P. Vijayan & PW4 -Pakshi Rajan, who were then working as Intelligence officers in the office of Customs Officer at Mangalore, proceeded to B.C. Road cross, Bantwal and they were waiting for a lorry coming from Mangalore side. At that time, lorry bearing No. CNX 5524 driven by accused No. 2 came from Mangalore side. When detecting party tried to intercept, the driver did not stop the lorry, therefore, said lorry was chased for two kilometers and thereafter it was intercepted. Accused No. 2 was the driver of lorry and accused No. 1 was the owner of lorry. Accused 3 & 4 were sitting in the cabin of lorry. On interrogation, accused No. 2 told that lorry was used for transportation of fertilizer bags. However, on further interrogation, detecting party found that accused had concealed silver bricks in gunny bags under fertilizer bags. The officers of detecting party removed fertilizer bags and opened gunny bags, which contained in all 75 silver bricks. At the time of interception, accused 1 to 4 were apprehended, lorry and silver bricks were seized. Due to security reasons, silver bricks were brought to the Office of Collector of Customs at Mangalore. The silver bricks were seized under mahazar. The statements given by accused 1 to 4 u/s 108 of the Act were recorded by PW2-S. Padmanabhan. The complainant secured PW9-Ganapathi Shet (a goldsmith) and requested him to examine the contraband and give a certificate regarding purity. PW9 after inspection gave a certificate that purity of silver bricks was 999 and they were of foreign origin. The detecting party also sent samples of silver bricks to mint master at Bombay and obtained Mint Report as per Ex. P.9. The sanction as per Ex. P. 10 was obtained to prosecute accused 1 to 4. The complaint was filed on 23-12-1994 and learned Magistrate took cognizance of offence on 10-5-1995.
3 On behalf of prosecution, PWs. 1 to 10 were examined and documents as per Ex. P.1 to Ex. P.10 were marked. On behalf of defence, accused 3 & 4 Were examined as DW1 & DW2.
The learned trial Judge on appreciation of evidence and after hearing learned counsel for parties acquitted accused 3 & 4.
The learned Counsel for accused 3 & 4 has contended that in view of provisions u/s 377(2) Cr. P.C., an appeal filed by the Assistant Collector of Customs, Mangalore represented by senior Central Government Standing Counsel is not maintainable.
In the judgment reported in Assistant Collector of Central Excise, Madras Vs. V. Krishnamoorthy and Others, , the Supreme Court has held that the complainant has full say only in an appeal against acquittal u/s 378(4) of the Code of Criminal Procedure but has no locus standi to move u/s 377(2) of the Code of Criminal Procedure.
This is not an appeal filed u/s 377(2) Cr. P.C., for enhancement of sentence. This is an appeal filed against judgment of acquittal filed u/s 378(1) Cr. P.C. Therefore, objection raised regarding maintainability of appeal has no basis.
The learned trial Judge has acquitted the accused Nos. 3 and 4 by recording the following findings :
(1) The prosecution has failed to prove that the seized contraband was of silver metal and it was a foreign origin.
(2) The prosecution has failed to prove that accused Nos. 3 and 4 had conscious possession of the said contraband and contraband was seized from possession of accused 3 and 4.
(3) The prosecution has not obtained valid sanction to prosecute the accused. The evidence in proof of interception of the vehicle and the seizure of contraband is not satisfactory.
In view of abatement of appeal against accused No. 1, separation of case against accused No. 2 and acquittal of accused 3 & 4, the following points would arise for determination :-
(1) Whether the prosecution has proved beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 & 4 were smuggling 75 silver bricks weighing 2561.130 kilograms in lorry bearing No. CNX-5524 and had reasons to believe that silver bricks were liable for confiscation u/s 111 of the Act, thereby committed an offence punishable u/s 135(1)(b) of the Act?
(2) Whether the prosecution has obtained a valid sanction to prosecute accused 3 & 4?
(3) Whether the Learned trial Judge has properly appreciated evidence on record?
(4) Whether the impugned judgment calls for interference?
(5) What order?
The prosecution has relied on evidence of PW-1 Rajashekar to prove seizure of 75 silver bricks in the office of Assistant Collector of Customs, New Custom House at Mangalore. PW-1 has deposed that on 13-1-1993, the custom officials seized 75 silver bricks. The sample of silver bricks was examined by PW-9 Ganapathi Shet who gave certificate as per Ex. P-1. PW-9 certified that the silver bricks were of foreign origin and it had purity of 999. PW-1 has not deposed that he was present when the lorry was seized and contraband was recovered.
During cross examination, PW-1 has deposed that he was also one of the members of detection party. It is obvious from the evidence of PW-1 that he was not a member of detection party and he had reached Mangalore only after knowing about the seizure of 75 silver bricks.
PW-2 S. Padmanabhan has deposed as if he were a member of detection party. He was present when the lorry was intercepted and the bricks were seized.
However, during cross-examination, PW-2 has admitted that he was not a member of detection party. PW-2 has deposed that he was present at the time of seizure of 75 silver bricks and he has recorded the statements of accused Nos. 1 to 4 u/s 108 of the Customs Act. PW-2 has also deposed that the seized bricks of silver were examined by PW-9 Ganapathi Shet. The samples of silver bricks were sent to the Mint Expert at Bombay. The evidence of PW-2 relating to this aspect does not suffer from any discrepancy. Therefore, we find PW-3 P. Vijayan and PW-4 Pakshi Rajan were the only officers of the detection party.
At the relevant time, PW-3 P. Vijayan was working as Senior Intelligence Officer in DRI at Mangalore. So also PW-4 Pakshi Rajan was working as an Intelligence Officer at DRI, Mangalore.
PW-3 has deposed that on 12-1-1993 when he was working as an Intelligence Officer at DRI, Mangalore, he received credible information about the transportation of smuggled silver bricks in lorry bearing No. CNX 5524 from Mangalore to Bangalore. On 12-1-1993 at about 7.00 p.m., PWs. 3 and 4 and another officer secured panch witnesses namely PW-5 Ravi and PW-6 Jayaram and proceeded in their jeeps towards Bantwal. They reached B.C. road cross at 8.00 p.m. At 8.45 p.m., they saw lorry bearing No. CNX 5524 coming from Mangalore side. They gave a signal to stop the lorry. The driver did not stop the lorry. They chased the lorry to a distance of 2 kms and intercepted the lorry. After intercepting lorry, they questioned the driver of the lorry (accused No. 2), who told them that he was transporting chemical fertilizer. He gave invoices in support of the same. PW-3 and others questioned accused No. 2 that they have credible information that the lorry was used for transporting smuggled silver bricks. Accused No. 2 contacted accused No. 1 and told other officials that they had concealed gunny bags containing silver bricks under the bags of chemical fertilizers. Thereafter, the tarpaulin of lorry was removed. Some of the bags of chemical fertilizers were removed in the middle and they found gunny bags containing silver metals. By then, it was 11.00 p.m. For security reasons, they brought the vehicle and the accused to the office of DRI at Mangalore. PW3 has deposed about the presence of panchas namely, PW-5 Ravi and PW-6 Jayaram. PW3 has deposed that he collected the names of persons travelling in the lorry in the office of DRI at Mangalore. At this juncture, it is relevant to state that PW-3 has not deposed that when they intercepted the lorry in addition to accused Nos. 1 and 2, two other persons were sitting in the cabin of the lorry, PW-3 has not deposed that they had brought the lorry to the customs office at Mangalore along with four persons.
At this juncture, it is relevant to state that PW-3 has deposed; when the lorry was intercepted, they did not seize the bills and invoices relating to purchase and transportation of chemical fertilizer from MCF (Mangalore Chemical Fertilizer), Mangalore. PW-3 has deposed; when accused No. 4 Sudhakar was searched, he was not in possession of any incriminating materials so also accused No. 3 John Bastin Lopes.
PW-3 has admitted that the gate pass revealed that the bags of chemical fertilizers were loaded into the lorry on 8-1-1993 in MCF Factory at Mangalore. PW-3 has denied the suggestion the when the lorry was proceeding near Khanapur at 7.30 a.m., on 9-1-1993, the housing pipe of the lorry snapped and the lorry had been parked by the side of the road near Khanapur. PW-3 has denied that accused No. 3 was proceeding in a car, accused No. 3 stopped the car and he was enquiring accused No. 2 as to his presence near the place.
PW-4 Pakshi Rajan another senior Intelligence Officer was a member of detection party. PW-4 has deposed that at the relevant time, he was working in the DRI office at Bangalore. On 12-1-1993, the Assistant Director of DRI at Mangalore has availed his services. Therefore, he left Bangalore on 11-1-1993 and reached Mangalore on 12-1-1993. On that day, at about 7.00 p.m., PW-3 informed PW-4 that he had received credible information regarding transportation of smuggled silver bricks in a lorry bearing No. CNX 5524. Therefore, PW-3 and PW-4 secured independent witnesses namely PW-5 Ravi PW-6 Jayaram. Thereafter, they proceeded to B.C. road cross.
At 8.45 p.m. they saw a lorry proceeding from Mangalore to Bangalore. PW-3 signaled the driver of lorry to stop the lorry but he did not stop the lorry. The detection officers chased the lorry in their car and intercepted the lorry at a distance of two Kms from B.C. road cross. PW-4 questioned the driver of lorry (accused No. 2) and learnt that lorry was used for transportation of bags of chemical fertilizer. When accused No. 3 was asked to remove the turpentine, accused No. 2 contacted accused No. 1 and told that they had concealed the silver bricks beneath the bags of chemical fertilizer. PW-4 removed some of the fertilizer bags from the body of the lorry and found bags containing silver bricks had been concealed beneath the bags of chemical fertilizers, by then it was 12.00 in the mid night. Therefore, they brought the lorry and accused to the office of Assistant Collector of D.R.I. at Mangalore. They learnt the names of accused viz Prabhakar Shetty (accused No. 1), Leo Sequeira, (accused No. 2), John Bastin Lopes (Accused No. 3) and Sudhakar (accused No. 4). The personal search of accused did not yield any incriminating materials.
At this juncture, it is relevant to state PW-4 has not deposed that accused Nos. 3 and 4 were sitting in the cabin of the lorry when the lorry was intercepted. PW-4 has deposed about the presence of accused Nos. 1 and 2 when the lorry was intercepted, However, PW-4 has deposed about the presence of accused Nos. 3 and 4 in the office of DRI at Mangalore.
At the relevant time, PW-5 Ravi was working as gold smith at Prema Jewelers Work at Mangalore. At 12-1-1993 at about 7.00 p.m., he was summoned to the office of DRI at Mangalore, so also PW-6 Jayaram. Both PWs. 5 and 6 reached DRI office. Thereafter, PWs. 5 and 6 were taken in a car to B.C. road. They were waiting in that place till 9.00 p.m., at that time, they saw a lorry proceeding from Mangalore side to Bangalore side. The officials of the Customs Department gave signal to the driver of lorry to stop the lorry but he did not stop the lorry. Therefore, customs officials chased them in their car and the lorry was intercepted at a distance of 2 kms from B.C. road cross. When the body of lorry was checked, they found bags containing silver bricks concealed under the bags containing chemical fertilizer. They brought the lorry and the contraband to the office of DRI, Mangalore and prepared a mahazar. PW-5 was not treated as hostile. PW-5 had been taken to place of interception as a panch witness. PW-5 has not deposed that accused Nos. 3 and 4 were travelling in the lorry when the lorry was intercepted. PW-5 has not deposed that accused Nos. 3 and 4 were brought from the place of interception to the place of DRI, Mangalore,
The evidence of PW-6 Jayaram is similar to the evidence of PW-5. PW-6 has deposed about the presence of the driver of the lorry. PW-6 has not deposed that accused Nos. 3 and 4 were travelling in the lorry when the lorry was intercepted.
PW-6 was not treated as hostile witness. When the lorry was intercepted, if accused Nos. 3 and 4 were present in the cabin of the lorry and they had been brought to the office of DRI at Mangalore alongwith the lorry and contraband. PWs. 5 and 6 who all along were present with the detection party would not have omitted to state the presence of accused Nos. 3 and 4 in the cabin of lorry when the lorry was intercepted. They would not have omitted to depose that accused Nos. 3 and 4 had been brought to the office of DRI along with the contraband. Therefore, the presence of accused Nos. 3 and 4 when the lorry was intercepted near B.C. road has not been proved beyond reasonable doubt.
The accused have denied to have given statements when they were examined by the officers of the Customs Department in the office of DRI. PW-7 John Simon has deposed that on 13-1-1993, he recorded the statement of Sudhakar (accused No. 4) in the office of DRI at Mangalore. At the relevant time, he was working as an Intelligence Officer, DRI at Bangalore. He had come to Man-galore on 11-1-1993, as per the directions of Deputy Director of DRI, who was in charge of DRI in the State of Karnataka. Accused No. 4 Sudhakar is an illiterate person. Therefore, PW-7 explained him the provisions of Section 108 of Customs Ace. He has identified the statement of Sudhakar as Ex. P-8.
During cross-examination, he has reiterated that accused No. 4 - Sudhakar had given the statement as per Ex. P-8. At this juncture, it is relevant to state that accused Nos. 3 and 4 were produced before the jurisdictional Magistrate on 13-1-1993. As per the evidence on record, the statement of accused No. 4 was recorded on 13-1-1993.
It is seen from the records that on 14-1-1993, PW-2 Padmanabhan had submitted a remand application giving the details of interception of lorry and seizure of silver bricks. At paragraph 4 of the remand application, it is stated that accused No. 3, so also accused No. 4 have given their statements u/s 108 of the Customs Act. In the remand application, the gist of the statement made by accused Nos. 1 and 2 is stated. As regards accused Nos. 3 and 4, apart from stating that they have given statements u''/s 108 of Customs Act, the gist of their statements is not reiterated. It is also not stated that the statements given by them were voluntary.
PW-8 E.M. Soori has deposed that he had recorded the statement of accused No. 3 John Bastin Lopes, as per Ex. P-7.
In the discussion made supra, I have referred to the remand application, wherein the gist of statements is not stated. It is also not stated that the statements given by accused No. 3 and 4 revealed incriminating circumstances.
PW-9 Ganapathy Seth has given evidence relating to examination of silver bricks in the office of DRI. His evidence is not controverted.
PW-10 S.R. Pattavardhan has given evidence relating to the examination of sample bricks in the Government of India Mint at Bangalore and he has given certificate as per Ex. P-9 certifying that samples were of silver metal and the purity of same was shown as 999. His evidence has not been controverted.
FW-2 who is stated to have recorded the statements of accused Nos. 1 to 4 has not deposed that PW-7 while recording the statement of accused No. 4 (Sudhakar) has explained the contents of statement in kannada language to accused No. 4. This was necessary in view of the fact that accused No. 4 Sudhakar was a cleaner and he was not knowing Kannada language. PW-2 apart from stating that on 13-1-1993 he recorded the statements of accused Nos. 1 to 4 has not deposed that accused No. 4 was aware of English language in which his statement was recorded. He has not deposed that he took the assistance of PW-7 for the purpose of translating the statements said to have been given by accused No. 4. In view of this, the prosecution has failed to prove the statement said to have been given by accused No. 4 Sudhakar.
FW-8 E.M. Soori has deposed that he recorded the statement of accused No. 3 John Bastin Lopes in the presence of Superintendent of DRI. As per the evidence of these witnesses and statements of accused Nos. 3 and 4, one Ganesha was smuggling silver bricks and he had master minded the smuggling activities and the lorry was moving from place to place as per his directions.
There was no investigation against said Ganesha and he was not prosecuted. When accused filed bail application, at the earliest point of time, they have denied to have made any statements before the Customs Officers.
Accused No. 3 was examined as DW-1. He has deposed that on 11-1-1993, at about 5.00 a.m., he was travelling from Honnavara to Belgaum in a tourist car. When he was travelling in a car near Khanapura, he saw a lorry had broken down and it had been parked by the side of the road. Accused No.-2 whom he knew earlier, was found near the lorry. He enquired accused No. 2 as to why he was standing there. At that time, 4 or 5 persons surrounded him and brought him and questioned him as to why he was talking to accused No. 2. Accused No. 3 told him that accused No. 2 is known to him and therefore, he was talking with him. Thereafter, he was retained by the officers of the customs. The lorry was got repaired and on the said day at about 12.00 p.m., accused No. 3 was brought in a Maruthi Jipsi to DRI office at Mangalore. He had also seen accused No. 4 near the lorry.
During cross-examination of DW-1, apart from suggesting that he had made a statement as per Ex. P-7, it was not suggested to him that he was travelling in a lory bearing No. CNX-5524 at about 8.00 p.m., on 12-1-1993 in order to help accused Nos. 1 and 2 to transport the smuggled silver bricks in the lorry. It was not even suggested to him that he was aware that silver bricks had been concealed under the fertilizer bags. The evidence of DW-1 that the lorry was intercepted by the customs department near Khanapur on Bangalore-Bombay road has not been controverted.
Accused No. 4 Sudhakar has given evidence as DW2. He has deposed that he had been engaged by accused No. 2 to work as a Cleaner. Therefore, he boarded the lorry at Udupi. He has deposed that when the lorry was proceeding near Khanapur, housing pipe of the lorry snapped. Accused No. 3 came in a car and he was talking to accused No. 2. At that time, the Custom officials came there and apprehended them. He has denied the suggestion that the lorry was intercepted near Bantwala.
At this juncture, it is relevant to state that in the seizure mahazar recorded in the office of DRI, during night of 13-1-1993 it is stated that the registration certificate of the lorry and the invoices were seized. However, these documents were not produced before the Court. This was necessary in view of the fact that the lorry filled with bags of chemical fertilizers had left the Mangalore Chemical Fertilizer, Mangalore on 8-1-1993. According to averments of complaint, lorry was intercepted during the night of 13-1-1993. The prosecution has no case that all along the lorry had been parked near MCF Bangalore from 8-1-1993 till it was intercepted on 13-1-1993. The complainant should have produced the invoices to show the bags of chemical fertilizers had been purchased from the MCF by accused. The version of the complainant that the lorry was intercepted near Bantwala has not been substantiated by the production of documents. Though the statements of accused Nos. 1 and 2 would reveal that one Ganesh was the leader and he had master minded the smuggling of silver bricks, no effort was made to secure him or prosecute him. There was no investigation by the DRI officials as to the place at which silver bricks were loaded into lorry and place at which they were covered with bags of chemical fertilizers. From the facts established by evidence, I find that accused No. 1 had domain of the contraband and he had hired the lorry of accused No. 2 for the purpose of transporting contraband. The evidence on record does not disclose that accused Nos. 3 and 4 were present when the bags containing silver bricks were loaded into lorry and they were covered with the bags of chemical fertilizers.
In view of the above discussion, I hold that the case of the prosecution that accused Nos. 3 and 4 apprehended when the lorry was intercepted is not proved beyond reasonable doubt. The panch witnesses, independent witnesses (PWs-5 and 6) have not deposed about the presence of accused Nos. 3 and 4 when the lorry was intercepted. The complainant has not produced the documents (though seized by the officials of the Customs Department) to prove the movements of the lorry from 8-1-1993 till it was intercepted at about 9.00 p.m., on 13-1-1993. Above all, the evidence of the prosecution does not reveal that accused Nos. 3 and 4 were aware of the concealment of silver bricks in the lorry. They had conscious possession of silver bricks. Even if the statements made by accused u/s 108 of the Customs Act, are taken into consideration, they would reveal that accused Nos. 3 and 4 had been engaged by accused Nos, 1 and 2 for the purpose of transporting the load of fertilizers from Mangalore to Bombay. Their statements do not reveal that they were present when the silver bricks were loaded into the lorry and they were present when silver bricks were covered by the bags of fertilizers. In the circumstances, the statements given by accused u/s 108 do not lend corroboration to the evidence adduced by the complainant.
The complaint was filed by the Assistant Director of Customs, Man-galore. When the complaint was filed by one Manjunath was working as Assistant Director of Customs (Preventive), Mangalore. The averments of complaint would indicate that the entire information collected by said Manjunath was incorporated in the complaint. The said Manjunath was not examined before the trial Court, no reasons were assigned for his non-examination.
In the complaint filed u/s 200 Cr. P.C., it is stated that Intelligence Officer (without giving his name) DRI, Mangalore, his colleagues and independent witnesses intercepted lorry. It is not stated in the complaint that PW3-P. Vijayan and PW4-Pakshirajan were officers who led detecting party and intercepted the lorry.
In the complaint, it is stated that lorry was chased to a distance of two kilometers and thereafter it was intercepted. The driver of the car of Customs Department was not examined before trial Court. It is stated in the complaint that accused No. 2 was in possession of certain documents such as invoices, Central Excise Gate Pass, loading instructions and material delivery advice issued by Mangalore Chemicals & Fertilizers Ltd., Mangalore. These documents were issued on 8-1-1993. These documents were not produced to show movements of lorry after 8-1-1993. The production of these documents was necessary to prove movements of lorry till it was intercepted on 13-1-1993. The non-production of these documents would probabalise the version of defence that lorry had gone out of order near Khanapur on Mangalore-Bombay Road and it was intercepted near that place.
As already stated, accused 3 & 4 have denied to have given any voluntary statements. Therefore, statements relied upon by prosecution are in the nature of retracted confessions.
On perusal of statement said to have been given by accused No. 3, I find that lorry was expected to reach Bombay. The statement given by accused No. 3 does not indicate that he was present when silver bricks were loaded into lorry. The statement alleged to have been given by accused No. 3 was based on information given to him by accused No. 1.
The statement given by accused No. 4 indicates he does not know English language. There was no impediment to record his statement in Kannada Language. The evidence on record does not indicate after statement of accused No. 4 was recorded, it was explained to him in Kannada Language before accused No. 4 affixed his LTM to his statement. In view of the above discrepant evidence, these statements cannot be used as corroborative evidence.
Therefore, the prosecution has failed to prove beyond reasonable doubt that on 12-1-1993 at 8.45 p.m., accused 3 & 4 were smuggling 75 silver bricks weighing 2561.130 kilograms in lorry bearing No. CNX-5524 and have reasons to believe that silver bricks were liable for confiscation u/s 111 of the Act, thereby committed an offence punishable u/s 135(1)(b) of the Act.
The competence of sanction order has been called into question. The sanction order as per Ex. P.10 indicates that the Sanctioning Authority namely Collector of Customs at Bangalore on perusal of panchnama dated 12-1-1993 and voluntary statements dated 13-1-1993 accorded sanction to prosecute accused 1 to 4.
On perusal of records, I find that no mahazar was prepared on 12-1-1993. There is no specific reference to voluntary statements given by each of the accused. The Sanctioning Authority without stating whether accused 1 to 4 were engaged in acquiring, possessing, keeping, concealing, carrying, purchasing and dealing with said contraband having reasons to believe that said goods of foreign origin were liable for confiscation has accorded sanction to prosecute the accused, the sanction order does not even refer to place where lorry was intercepted and contraband was seized. It is obvious that sanction was accorded without application of mind by the Sanctioning Authority. Therefore, sanction order is not valid in the eye of law.
The learned trial Judge on proper appreciation of evidence has acquitted accused 3 & 4. In view of the above discussion, I answer points 1, 2 & 4 in negative and point No. 3 in affirmative and pass the following :-
ORDER
The appeal is dismissed