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Judgment
This revision application arises out of order passed u/S. 66 of the N.D.P.S. Act and S. 139 of the Customs Act in Special Case No. 25 of 1989 pending before the learned Additional Sessions Judge, Greater Bombay.
Briefly stated the facts giving rise to the present revision application are as under :
Respondents Nos. 1 to 4 are charge-sheeted for the offences punishable under the N.D.P.S. Act and the Customs Act. They are now facing trial before the learned Additional Sessions Judge, Greater Bombay. During the trial after farming of the charge Shipping Bill No. 568738 and the Invoice No. 786 and other documents which are part of the said shipping bill were tendered in evidence through the prosecution witness Shri S. N. Channa, the Appraiser of Customs who had seized the said documents from one of the accused when the two accused, i.e. respondents Nos. 3 and 4 had presented the same before him. The learned Additional Sessions Judge did not exhibit the said documents on the ground that they did not appear to be the documents seized from the accused. The prosecution relying on S. 66 of the N.D.P.S. Act and S. 139 of the Customs Act had contended that the said documents were admissible without leading evidence to prove the same as normally required to be made under the Indian Evidence Act. It further appears that after the rejection of the said request, further attempt was made by the prosecution to get the said order reviewed on 14-2-1991. The learned Additional Sessions Judge again rejected the contention raised on behalf of the prosecution. The learned Additional Sessions Judge held that for raising the presumption under S. 139(b) of the Customs Act, it is necessary that the prosecution must lead the evidence to prove the said documents by examining the scribe under whose instructions or in whose presence they were written and as there was no evidence as to who had prepared the shipping bill by recording the contents of the goods to be exported, it was not possible to hold that the said documents were proved. The learned Additional Sessions Judge had only exhibited the signatures on the said documents. Being aggrieved by the said order, the Assistant Collector of Customs, special Investigation & Crime Branch has moved this Court in revision.
On behalf of the revision petitioner reliance in placed on the provisions of S. 66 of the N.D.P.S. Act and S. 139 of the Customs Act. Reliance is also placed on the deposition of the appraiser who was examined before the trial Court. It is also pointed out that the appraiser in his deposition has stated that he is an appraiser and a gazetted officer of the Customs Department. It is also pointed out that u/S. 108 of the Customs Act any gazetted officer of the Customs has a power to summon any person whose attendance he considers necessary either to give evidence or to produce a document or any other thing in any inquiry which such officer is making in connection with smuggling of any goods. u/S. 100 of the Customs Act, the proper officer has also the power to search suspected persons entering or leaving India. "Proper Officer" as per S. 2(34) means the officer of Customs who is assigned the functions to be performed under the Customs Act by the Board or the Collector of Customs. Now it is the prosecution case that on 13-11-1988 the present respondent No. 3 accompanied by respondent No. 4 presented Shipping Bill No. 568738 dated 8-11-1988 and Invoice No. 786 dated 5-11-1988 along with the other relevant documents to the said appraising officer in M.O.D. shed of Bombay Port Trust for examination of consignment of 275 drums having shipping marks as on the shipping bill lying in Shed No. 2 of the M.O.D. to contain Vermiculite, and in the course of examination of few drums the officer noticed some material other than the declared goods concealed in the drums. He therefore called two panch witnesses and examined the said drums which resulted in the recovery of 2629.580 kgs. of Hashish, a narcotic substance of the market value of Rs. 1,57,77,480/- from the 90 drums which were seized under a panchanama along with the said documents presented by respondents Nos. 3 and 4. Further investigation revealed further particulars. It is not necessary to mentioned here for the purposes of this revision application the further facts. The two sets of documents which were seized by the said appraising officer were sought to be produced by the prosecution at the time of the trial and the prosecution contended that as per the provisions of S. 66 of the N.D.P.S. Act the two sets of documents which were produced by the present respondent No. 1 and which were seized by the appraiser, the gazetted officer of the Customs Department, could be admitted in evidence without any further proof in view of the presumption provided under the said Section. Section 66 of the N.D.P.S. Act runs as under :-
"66. Presumption as to Documents in Certain Cases - Where any document.
(i) is produced or furnished by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or
(ii) has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed by the Central Government) in the course of investigation of any offence under this Act alleged to have been committed by a person.
and such document is tendered in any prosecution under this Act in evidence against him, or against him and any other person who is tried jointly with him, the court shall - (a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person''s handwriting; and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document."
Similar is the position u/S. 139 of the Customs Act and the said Section runs as under :
"139. Where any document -
(i) is produced by any person or has been seized from the custody or control of any person, in either case, under this Act or under any other law, or
(ii) has been received from any place outside India in the course of investigation of any offence alleged to have been committed by any person and such document is tendered by the prosecution in evidence against him or against him and any other person who is tried jointly with him, the court shall -
(a) presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person''s handwriting, and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) admit the document in evidence, notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;
(c) in a case falling under clause (i) also presume, unless the contrary is proved, the truth of the contents of such document."
On behalf of the revision petitioner, it is contended that the documents sought to be relied upon by the prosecution were produced by the present respondent No. 3 and the respondent No. 4 was accompanying him and the said documents were seized by the said officer of the Customs Department, and, therefore, presumption would arise that the signature and every other part of the said documents purport to be in the handwriting of a particular person as well as that they were signed by the person who purports to have signed them and as per S. 66 they were to be admitted in evidence on the basis of the said presumption. It was not necessary for the prosecution to lead oral evidence to prove the same and the learned Additional Sessions Judge was in error in holding that the said provision did not exempt the prosecution from leading evidence to prove the said documents. As a matter of fact, S. 66 further provides for presumption about the truthfulness of the contents of such documents, of course, it being a presumption it is always open to rebut the same. It appears from the order passed by the learned Additional Sessions Judge that he felt that in spite of the said provisions of S. 66 of the N.D.P.S. Act and S. 139(b) of the Customs Act, it is necessary for the prosecution to lead evidence to prove the said documents in the normal manner under the Indian Evidence Act. Now it is true that the said documents were seized by the appraiser, but there is evidence in his oral testimony that he is a gazetted officer of the Customs Department and that would empower him to seize the said documents as he is a proper officer u/S. 2(34) of the Customs Act. At least prima facie at this stage there is no reason to conclude that he is not such an officer. Under these circumstances, the view of the learned Additional Sessions Judge is not correct. On behalf of the respondents, it was tried to be contended before me that the documents were not actually seized by the Investigating Officer but were seized by the appraiser and the appraiser would not be the officer contemplated under the said provisions of the Act. I am unable to agree with him in view of the oral testimony of the officer recorded in the case.
It was also tried to be contended on behalf of the respondents that the impugned order is an interlocutory order and, therefore, the revision application is not maintainable. The said contention also has no force. By the order that is passed the evidence that has been tried to be led by the prosecution would stand excluded. The trial would proceed further without the documents though the learned Additional Sessions Judge has taken a wrong view of S. 66 of the N.D.P.S. Act and S. 139(b) of the Customs Act. It was tried to be contended that the prosecution is entitled to lead evidence and prove the documents and, therefore, it cannot be said to be an order which would affect the rights of the parties finally. The said contention is not sustainable. The prosecution definitely is trying to take advantage of the provisions of S. 66 of the N.D.P.S. Act and S. 139(b) of the Customs Act. By the order that is passed the said right is denied to the prosecution finally by the learned Additional Sessions Judge and, therefore, the said order must be treated as a final order and not an interlocutory order. Hence the criminal revision application is maintainable.
In view of the above discussion, the revision application is allowed and the learned Additional Sessions Judge is directed to admit the said documents in the light of the discussion made above. Rule made absolute accordingly.
Mr. Sayed does not press criminal applications Nos. 431 of 1991 and 929 of 1991 and hence the same are dismissed for non-prosecution, and orders are accordingly passed in these Cr. Applications.
Order accordingly.