Bombay High Court
Shri C.C. Nagpure vs Mohamed Lalik Hussain Sheikh on 7 December, 2012
Bench: P. D. Kode
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.529 OF 1995
Shri C.C. Nagpure .... Appellant
Assistant Collector of Customs,
Marine & Preventive Wings,
Bombay.
vs
1. Mohamed Lalik Hussain Sheikh
Immamwada, B.I.T. Chawl No.6,
Bombay 400 009.
2. State of Maharashtra .... Respondent
Smt. A.A. Mane, A.P.P. for Appellant - Custom.
Smt. M.H. Mhatre, A.P.P. for Respondent - State.
CORAM: P.D.KODE, J.
DATE : 7TH DECEMBER, 2012
JUDGMENT:
By the present appeal, the appellant Assistant Collector of
Customs, Marine and Preventive Wings, Bombay has challenged the
judgment and order of acquittal dated 1.02.1994 passed by learned
Chief Metropolitan Magistrate, Esplanade, Bombay acquitting
Respondent No.1 from the charge of commission of offences under
Section 135(1)(b)(i) of the Customs Act, 1962 and under Section
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85(1)(ii)(a) of the Gold (Control) Act, 1968. The said prosecution
has emerged from the complaint filed by Assistant Collector of
Customs, Marine and Preventive wings, Bombay, Shri C.C. Nagapure
against Respondent No.1 of commission of such offences.
2. According to the said prosecution in pursuance of a confidential
information received at Central Intelligence Unit, Marine and
Preventive, Bombay Customs on 19.11.1987; PW 1 Shri Sudhir
Kulkarni, Inspector of Marine and Preventive Customs at about 14.00
hours had been to Dadar T.T. in the vicinity of the Preetam Hotel. One
officer and two peon were accompanying PW 1. Informant had also
been to the said spot and he was present when PW 1 reached the said
spot. The informant at that stage pointed one Suzuki Motor Bicycle
parked in front of Hotel Preetam.
3. At about 15.30 hours, one person came near the motor bicycle
who was with a sweetmeat box in his hand. PW 1 identified him as
accused. He was apprehended. PW 1 asked him the name and other
particulars and questioned as to what he was carrying in the
sweetmeat box. He disclosed that the box contained some foreign
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marked gold bars. PW 1 asked him as to from whom he had received
said gold. He replied that the same was given to him by one unknown
person who had been to the said place and went way. Due to
gathering of crowd, the accused was instructed to take the box and
accompany them to office of Marine Preventive Customs at Everest
House. According to the prosecution, two panchas were called at the
place and along with them the said person was taken to the office of
the PW 1. The box was opened in the office in presence of panchas
and found containing 4 gold bars of 10 tolas each with foreign
markings concealed in the 'Burfi' in the said box. The said person was
not having any documents to show legal possession of gold. The same
gave reason to believe of the gold being the smuggled gold and liable
for confiscation under Gold Act. Gold of value Rs.1,50,000/- was
seized under the panchanama. PW1 has written the said
panchanama. The panch No.1 Shri Lalit Malkan read over the
panchanama to other panch. He accepted the same and both of them
signed the said panchanama and so also PW 1.
4. After completion of the primary enquiry and processing of the
papers and receipt of sanction and authorization from Collector of
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Customs. The complaint against same person i.e. Respondent No.1
was filed by Assistant Collector of Customs Shri C.C. Nagapure. In the
meanwhile, PW2 Sitaram Vishnu Pangarkar, Superintendent of
Customs and Central Excise, Bombay, after issuing summons to the
Respondent No.1 under Section 108 of the Customs Act, 1962
recorded his statement in English after questioning him. According to
PW 2, the respondent No.1 wrote his statement and signed the same
and PW 2 counter signed the said statement. PW 2 recorded further
statement of the respondent on the next date. Similarly on 8 th
December, 1987, PW 2 recorded the statement of Tekali Tembrikar, the
owner of the scooter. The assay report states that material sent for
assay being gold, was received. After institution of the prosecution
and examination of PW 1 and PW 2, the charge for commission of the
offence as described earlier was framed against respondent No.1, he
pleaded not guilty to the said charge. The prosecution examined four
witnesses at the said case i.e. earlier referred two witnesses and first
panch Lalit Kumar Malkan PW 3 and second Panch PW 4 Prakash
Kukreja.
5. The defence of the respondent No.1 at the trial was that of
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partial denial i.e. though he admitted his presence at the spot but he
denied that sweetmeat containing gold bars were found in his
possession. During his examination made under Section 313 of the
Code of Criminal Procedure, he claimed that at the relevant time, he
was proceeding on motar scooter towards Bandra and to avoid the
traffic signal on reaching Dadar he had taken the left turn to proceed
further. He claimed that then he noticed one boy running on the road
chased by two to three persons. The said boy dashed with his scooter
and fell down. He was having one box with him. The same had also
fallen. The respondent, in order to help the said boy picked up the
said box. Then two to three persons who were chasing the said boy
came near him and asked him as to what was in the box. He told
them that he was unaware about it as it was the box of the said boy
who was running away. The said persons told him that they were
officers of Custom and he had to accompany them to their office for
explaining the things to the officer and he would be treated as
witness. He denied that the box was opened in presence of panch
witnesses and the same was found containing the gold bars having
foreign markings. He claimed that on the next day in the morning he
was shown the box by one officer and told that in the said box he had
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found gold biscuit and sweetmeat. He claimed that however no gold
was shown to him. He denied receipt of any summons under Section
108 of Customs Act, 1962, though he admitted that his purported
statement was in his handwriting, he denied the same being voluntary
statement. He claimed that Custom Officer, after showing him some
writing in English has asked him to sign the same by telling that
thereafter he would be released on the next morning. The said officer
gave him option to copy down the statement and sign the same.
Respondent No.1 claimed that he cannot speak English but he can
write down English. He claimed that therefore he copied down the
statement given by the Officer and signed the same and Exhibit P 7
being the said statement but not the voluntary statement made by him
and having written the same as in the circumstances stated by him.
6. The Trial Court, after assessing evidence of the said witnesses in
light of the submission canvassed, came to the conclusion that the
prosecution had failed to establish the commission of the offences for
which respondent No.1 was charged and acquitted him.
7. Smt. A.A. Mane, learned Special Public Prosecutor contended
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that fact of gold being seized from the respondent was duly
established by adducing the evidence of PW 1 who had carried raid
effected after keeping surveillance at the spot near Pritam Hotel and
through evidence of panch witnesses PW 3 and PW 4. She urged that
the Trial Court by giving unnecessary importance to the minor
discrepancies within the evidence of the said witness erroneously
came to the conclusion that the prosecution had failed to establish the
fact of seizure of gold bars from the accused. Learned Special Public
Prosecutor contended that the Trial Court overlooked the admissions
given by the accused in his statements recorded under Section 108 of
the Customs Act. She urged that the view taken by the Trial Court of
the prosecution evidence is not only erroneous but perverse. It was
urged that the Trial Court failed to properly appreciate the evidence of
the prosecution as leaving aside, normal discrepancy arising in the
evidence of even honest witnesses, appreciating the said evidence lead
to the conclusion of the prosecution having established the
commission of offence by the accused. She urged that the judgment
delivered by the Trial Court, being not only erroneous but perverse
and not being based upon the surface at the trial, the same deserves to
be quashed and set aside and so also order of acquittal passed in
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favour of the Respondent. She urged that this guilt of respondent-
accused is borne out/established by the evidence surfaced at the Trial,
he be convicted and sentenced in accordance with law by allowing the
appeal.
8. None having appeared on behalf of Respondent, there was no
advantage to hear any submissions on his behalf.
9. In order to appreciate the submissions advanced by learned A.P.P.
the record and proceeding and particularly the judgment impugned,
oral evidence adduced at the trial as well as the documentary
evidence were duly considered.
10. After careful perusal of the judgment impugned, it is difficult to
accept the submission advanced that the Trial Court had not taken
into consideration the relevant facits of the evidence adduced by the
prosecution or has not passed the judgment upon the evidence
surfaced at the trial. Such a conclusion is inevitable as the matter
stated/recorded in paragraphs 8 and 9 which are running into few
pages clearly reveal that the Trial Court has meticulously considered
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the evidence of PW1, PW3 and PW4 in the same. Without retreating
or reproducing the matter stated in the said paragraphs it can be
safely said that factual observations made therein are in consonance
with the matters arising from the evidence of the concerned witnesses
regarding which the discussion is made in the said paragraph.
Perusal of the said discussion reveals that on the basis of such a
material surfaced during the prosecution evidence, the Trial Court had
come to the conclusion of their being variance regarding the place at
which the seizure panchanama was drawn i.e. whether drawn at the
spot of the seizure rear of Pritam Hotel or as claimed by PW 1 in the
office of the Customs. It also came to the conclusion of their existing
variance regarding the place at which both the panchas were called as
PW 1 claimed that he had taken both panch witnesses from the spot
when the accused was taken to the office of Marine and Preventive,
while first panch PW 3 claimed that after he had reached office of the
customs along with PW1, the second panch was called after recording
of panchnama has began. It is difficult to find any fault with the
observations made by the Trial Court that out of the said witnesses
PW1 being involved in a raid, was an interested witness, while PW 3
was the independent witness.
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11. The said discussion also reveals that PW 3 has admitted that
during the enquiry respondent had disclosed that he had received the
box from unknown persons. On the said basis Trial Court had come to
the conclusion that second panch being called at the office of Marine
and Preventive would not have known the happenings at the spot of
the incident. The Trial Court, after duly taking into consideration the
answers received from PW 3 during the cross-examination regarding
the place at which he was working, came to the conclusion that his
evidence was doubtful that he was working in the A to Z shop in
Dadar Branch. Careful perusal of all the said reasonings does not give
any reason for accepting the same being illegal or improper. Similarly,
the Trial Court, after duly took into consideration the evidence of PW
1 regarding the reason for which the respondent was taken from the
spot to the office and claimed that the panchanama was drawn in the
office and in light of the admission of PW 3 that when he had been to
the spot, sweetmeat box was with the officer and same was not with
the respondent and fact that no signature of panch was obtained on
the sweetmeat box, came to the the conclusion that in all probabilities
pancha witnesses has not seen the sweetmeat Box and concealment of
gold in the same. The conclusion drawn by the Trial Court of their
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being strong probability of panch witnesses, having merely signed the
panchanama without seeing sweetmeat box and its contents, for the
reasons given by the Trial Court, can neither be said to be erroneous
nor perverse.
12. In the instant case, for coming to the conclusion about guilt of
the respondent, it was necessary for the prosecution to prove that the
respondent was in conscious possession of the contra-ban article i.e.
the gold when he was prohibited by raiding party at the spot. There
being paucity of evidence of independence witnesses regarding the
said aspect, the Trial Court had declined to draw such inference on the
basis of the evidence of the members of the raiding party i.e. PW 1
and PW 4. The said conclusion drawn by the Trial Court being based
upon the relevant facits of the evidence of the members of the raiding
party and particularly that of PW 1 and of the panch witnesses and
absence of signatures of panch witnesses on the box, can neither be
said to be perverse nor can be dehorsed the evidence of the witnesses.
The reasons given in para 10 also cannot be said to be erroneous or
dehorse material surfaced at the trial. Thus, finding reached by the
Trial Court of the defence version being true also cannot be said to be
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erroneous or perverse in light of the reasons given for the same.
Having regard to the same, the order of acquittal recorded by the Trial
Court cannot be said to be improper upon the possible view of the
evidence surfaced at the trial.
13. In the premise aforesaid, hardly any case is made out for
interfering with the order of acquittal passed by the Trial Court.
Resultantly, there are no merits in the appeal and the same deserves to
be, and accordingly stands dismissed.
(P.D.KODE, J.)
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