Department Of Customs vs Luke Antony Kocherry
2010 Latest Caselaw 4523 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         CRL.L.P. 153/2007


                                                  Reserved on : 15.09.2010
                                                  Pronounced on: 27.09.2010
IN THE MATTER OF :
DEPARTMENT OF CUSTOMS                                       ..... Petitioner
                                Through: Mr. S.C. Aggarwala, Advocate

                    versus

LUKE ANTONY KOCHERRY                                        ..... Respondent
                                Through: Mr. Rajiv Davar, Advocate

CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may
        be allowed to see the Judgment?                   Yes

     2. To be referred to the Reporter or not?            Yes

     3. Whether the judgment should be                    Yes
        reported in the Digest?

HIMA KOHLI, J.

1. The present petition is filed by the Department of Customs under

Section 378(iv) of the Cr.PC praying inter alia for leave to appeal against the

judgment dated 23.04.2007 passed by the learned Additional Chief

Metropolitan Magistrate (ACMM), New Delhi, dismissing the complaint of the

petitioner against the respondent for the offence punishable under Section

135(1)(a) of the Customs Act, 1962 (hereinafter referred to as „the Act‟), on

the ground that the prosecution had not been able to prove and substantiate

the allegations and acquitting the respondent.

2. The relevant facts leading to filing of the aforesaid complaint are

that on 29.09.1998, the respondent, holder of an Indian passport, reported

in the departure hall of IGI Airport, New Delhi for going to Moscow by

Aeroflot Flight. After completing his immigration formalities, when the

respondent reported at the Customs Counter, he was asked by a uniformed

customs officer as to whether he was carrying any foreign currency or

contraband goods, to which he replied in the negative. As he was

proceeding towards the security hold area, he was stopped by a customs

officer in plain clothes, Sh.Y.S. Rawat (PW1) and was asked whether he was

carrying any unauthorized foreign currency or narcotic drugs, to which he

replied in the negative. At this stage, two independent witnesses were

called and the respondent was again asked whether he was carrying any

unauthorized foreign currency or narcotic drugs, to which he again replied in

the negative. But as the customs officers were dissatisfied with his reply, a

notice under Section 102 of the Act (Ex. PW1/C) was served upon the

respondent. The respondent gave his no objection in writing by stating

that search could be conducted by any customs officer. The checked in

baggage and hand baggage of the respondent were searched thereafter.

One brown coloured leather purse was recovered from the briefcase of the

respondent, which revealed 11000 US Dollars and Indian currency worth

`6,500/-. As the respondent could not produce any document showing legal

import/acquisition/possession/exportation of the recovered currency, the

same were seized under Section 110 of the Act and a Panchnama

(Ex.PW1/D) dated 29.09.1998 was drawn to the said effect by Sh.Y.S. Rawat

(PW1), which was signed by two witnesses. Summons (Ex.PW2/A) were

issued to the respondent under Section 108 of the Act. Thereafter, the

statement of the respondent/accused was recorded by the Superintendent of

the Department, on duty, Ms.S.Mishra (PW2) at 6:00 AM on 30.09.1998,

under Section 108 of the Act (Ex. PW2/B).

3. After seizure and enquiries, the respondent was arrested and

produced before the Court, whereafter a complaint under Sections 132 and

135(1)(a) of the Act was filed. Pre-charge evidence was recorded and

charges were framed to which, the respondent pleaded not guilty and sought

cross-examination of the witnesses, who were examined before charge. The

witnesses were produced at the post-charge evidence and the statement of

the accused was recorded under Section 313 Cr.PC. After arguments were

addressed, the impugned judgment dated 23.04.2007 acquitting the

respondent was pronounced. Aggrieved by the same, the petitioner has filed

the accompanying appeal.

4. Counsel for the petitioner submitted that while passing the

impugned judgment, the learned ACMM completely ignored the voluntary

statement of the respondent made under Section 108 of the Act and the

Punchnama duly signed by him. He submitted that the provisions of

Section 58 as also 106 of the Indian Evidence Act, 1872 (hereinafter referred

to as "the Evidence Act") were not taken into consideration. He further

argued that the trial court failed to appreciate the fact that there was no

reason for the Department to have falsely implicated the respondent and

once possession was established, the onus shifted to the respondent to rebut

the presumption against him, which he failed to discharge. He urged that in

the light of the evidence placed on the record, the learned ACMM erred in

concluding that the Department had failed to prove that the accused had not

declared the foreign currency before the "proper officer". In support, he

relied on the evidence of PW1 and the Panchnama and stated that merely

because the Panchnama was not proved by the two Panchas, it does not

mean that the same could not be relied upon as the same was also signed

by PW1, who corroborated the contents thereof in his testimony. It was

canvassed on behalf of the petitioner that retraction of the statement made

by the respondent under Section 108 of the Act, was of no value as he had

failed to prove the fact that the said retraction was made for valid reasons

and in these circumstances, the confession made by the accused under

Section 108 of the Act alone was sufficient to indict him, without any

corroboration, though in the present case, the said statement was

corroborated by both, by PW1 and PW2, as also the Panchnama. Counsel

for the petitioner relied on the provision of Sections 58 and 106 of the

Evidence Act and contended that as it was within the special knowledge of

the respondent alone that he was carrying foreign currency, the burden of

proving that the same was duly declared by him, lay at his door. In support

of his submissions, counsel for the petitioner relied upon the following

judgments:-

(i) K.I. Pavunny vs. Assistant Collector (Head Quarter), Central Excise Collectorate 1997(3) SCC 721

(ii) M. Prabhulal vs. The Assistant Director, Directorate of Revenue Intelligence; 2003 (3) JCC 1631

(iii) Rehmatullah vs. Narcotics Control Bureau 2008(9) AD (Delhi)

(iv) Kanhaiyalal vs. Union of India 2008[1] JCC [Narcotics] 23

(v) State of Punjab vs. Lakhwinder Singh& Anr. (2010) 4 SCC 402

5. Per contra, counsel for the respondent/accused supported the

impugned judgment and drew the attention of this Court to the testimony of

PW1 and PW2 to submit that their testimony did not corroborate the

statement made by the accused under Section 108 of the Customs Act,

which was subsequently retracted. He relied on the provisions of Section 77

of the Act, which deals with declaration by the owner of the baggage and

submitted that in the present case, declaration of the contents was not made

before the "proper officer" as stipulated under the Act and hence, the

learned ACMM rightly concluded that the Department failed to prove that the

accused had not declared the foreign currency before the "proper officer"

namely, the first uniformed customs officer, who had intercepted the

accused at the Customs Counter. He submitted that the petitioner failed to

discharge the burden of proof placed on it under Section 101 of the Evidence

Act, which requires the Department to prove all the facts which were

asserted by him and having failed to do so, Section 106 of the Evidence Act

could not be invoked against the respondent. Lastly, counsel for the

respondent asserted that if the findings of acquittal, as reached by the trial

court, cannot be said to be unreasonable, then the appellate Court should

not disturb it in an appeal against acquittal even if it was possible to reach at

a different conclusion on the basis of the material on the record and if two

views are reasonably possible, on the basis of the evidence on the record,

the appellate Court should not interfere simply because it would have taken

a different view if the case had been tried by it. He supported his

submissions by referring to the following judgments:-

(i) Chelloor Mankkal Narayan Ittiravi Nambudiri vs. State of Travancore-Cochin 1953 AIR (SC) 478

(ii) Akoijam Ranbir Singh vs. The Government of Manipur; AIR 1976 SC 2191

(iii) Babu and others vs. State of Uttar Pradesh 1983 Crl.L.J. 334

(iv) The State vs. Makund Harijan & Anr. 1983 Crl.L.J. 1870

(v) Chandigarh Administration, Chandigarh vs. Dharam Singh AIR 1985 SC 1671

(vi) Abid Malik vs. Union of India & Anr. 2009 V AD (Delhi) 749

(vii) Directorate of Revenue Intelligence vs. Moni 2010 (252) E.L.T. 57 (Del.)

(viii) NCB vs. Aziz Ahmad 2010 (1) JCC (Narcotics) 6

6. This Court has heard the counsels for the parties limited to the

aspect of grant of leave to appeal and has considered their respective

submissions in the light of the judgment rendered by the trial court and the

judicial pronouncements on the points raised.

7. To take the last point first, as to the scope of interference in an appeal

against acquittal, the principles are now well settled. While the courts have

consistently recognized the right of the appellate court to review the entire

evidence and come to its own conclusion, it can, however, not be forgotten

that in case of acquittal, there is double presumption in favour of the

accused. Firstly, the presumption of innocence is available to him under the

fundamental principles of criminal jurisprudence that every person should be

presumed to be innocent unless he is proved to be guilty by a competent

court of law. Secondly, the accused having secured an acquittal, the

presumption of his innocence is not weakened but further reinforced,

reaffirmed and strengthened by the trial court. The above principles of law

were examined at length by the Supreme Court in the case of Nepal Singh

vs. State of Haryana reported as 2009(6)SCALE 555, wherein the Court

traced the law in this regard from the first important decision rendered by

the Judicial Committee of the Privy Council in the case of Sheo Swarup vs. R.

Emperor reported as (1934) 61 IA 398, wherein it was held that Sections

417, 418 and 423 Cr.PC (old Code), gave full power to the High Courts to

review at large the evidence upon which, the order of acquittal was founded,

and to reach the conclusion that upon that evidence, the order of acquittal

should be reversed and that no limitation should be placed upon that power,

unless expressly stated so in the Code. However, the appellate courts were

cautioned as below:

"But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." (emphasis added)

8. The aforesaid judgment has been reiterated from time to time in

a catena of decisions starting from the case of Nur Mohd. vs. Emperor AIR

1945 PC 151; Prandas vs. State AIR 1954 SC 36; Surajpal Singh vs. State

1952 Crl.L.J.331; Ajmer Singh vs. State of Punjab 1953 Crl.L.J. 521;

Atley vs. State of UP 1955 Crl.L.J. 1653; Aher Raja Khima vs. State of

Saurashtra 1956 Crl.L.J. 426; Sanwat Singh vs. State of Rajasthan 1961

Crl.L.J. 766; M.G. Agarwal vs. State of Maharashtra [1963] 2 SCR 405;

Shivaji Sahabrao Bobade vs. State of Maharashtra 1973 Crl.L.J. 1783; K.

Gopal Reddy vs. State of A.P. 1980 Crl.L.J. 812, Ramesh Babulal Doshi vs.

State of Gujarat 1996 Crl.L.J. 2867; and has been echoed down the years,

to find mention in the cases, Allarakha K. Mansuri vs. State of Gujarat 2002

Crl.L.J. 1489; Bhagwan Singh vs. State of M.P. 2002 Crl.L.J. 2024;

Harijana Thirupala vs. Public Prosecutor, High Court of A.P. 2002 Crl.L.J.

3751; Ramanand Yadav vs. Prabhu Nath Jha 2004 Crl.L.J. 640; Kallu vs.

State of M.P. 2006 Crl.L.J. 799; Chandrappa & Ors. vs. State of Karnataka

2007 Crl.L.J. 2136 and lastly, in Ghurey Lal Vs. State of UP (2008) 10

SCC 450.

9. In the case of Chandrappa (supra), the general principles

regarding powers of the appellate court while dealing with an appeal against

an order of acquittal, as culled out from the aforesaid judgments, were

summarized, in the following words:-

"(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail

extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

10. It is necessary to test the decision of the trial court on the anvil

aforesaid judgments to see, if the valuation of the evidence done by the

learned ACMM suffers from any illegality, arbitrariness, perversity which

deserves interference and to verify if the main grounds on which, the trial

court has based its order, are reasonable and plausible. A perusal of the

impugned judgment shows that the trial court has analysed at length the

testimony of PW1, Sh. Y.S. Rawat, the second customs officer in plain

clothes, who stopped the accused when he was proceeding towards the

security hold area, to ask whether he was carrying any unauthorized foreign

currency or narcotic drugs and of PW2 Smt.S.Mishra, the Superintendent of

the Department on duty at the airport on the relevant date, who recorded

the statement of the accused under Section 108 of the Act. After perusing

the deposition of the aforesaid witnesses, the learned ACMM held that the

complaint filed by the petitioner pursuant to the authorization had been

proved in accordance with law, and the notice under Section 102 of the Act

given by PW1 to the accused as also drawing of the Panchnama of recovery

and seizure had also been proved in accordance with law. But it was

observed in the judgment that it was an admitted case of the parties that

the independent witnesses to the Panchnama were not examined by the

petitioner despite opportunities being granted in this regard, there was no

corroboration to the testimony of PW1 on the aspect of seizure, and the

department had failed to identify, cite or produce the uniformed customs

officer as a witness, who had first intercepted the accused at the customs

counter, where he was asked as to whether he was carrying any foreign

currency or contraband goods. While referring to the testimony of PW1 and

PW2, the learned ACMM noticed that initially, the accused had been stopped

and asked to make a declaration by a uniformed customs officer and despite

the said fact and the fact that PW1 admitted in his cross-examination that

though had met the said officer on a number of occasions even after the

incident, he had not been cited by the Department as a witness in the

present case. In these circumstances, the trial court concluded that the

petitioner failed to prove in accordance with law, the fact that though the

accused was under an obligation to declare the foreign currency to the said

uniformed customs officer, who was admittedly the first person to have

stopped and questioned him, he did not do so.

11. Further more, the trial court found the statement of seizure

made by the accused to be very consistent. As per the accused, when he

reported to the airport, he was never intercepted by any person, nor was

any question put to him as to whether he was carrying any currency or

contraband. Rather the accused had himself approached the officers and

informed them that he was carrying certain amount of currency for which,

he enquired whether any declaration was needed to be made, whereupon he

was told that declaration form would be given to him for filling it up. The

accused stated that at that juncture, he had shown his purse to the customs

officers, who took him downstairs to let him know if the declaration was

required to be made and later on when he came back, he told the accused

that the currency was liable to be confiscated. As a result, a confusion was

created and the accused was forced to go behind in one of the rooms and

was made to sign certain papers.

12. The trial court observed that it was an admitted case of the

prosecution that the currency recovered from the possession of the accused

was not hidden anywhere but was in the purse, which he was carrying. It

was also noticed that the recovery of currency had not been disputed by the

accused. The trial court referred to Section 77 of the Act, which mandates

that for the purposes of clearance of baggage, declaration of the same is

required to be made to the "proper officer" and held that in the present

case, the uniformed customs officer, who first intercepted the accused at the

Customs Counter, was the "proper officer", who had not been cited or

examined by the prosecution. In the light of the aforesaid findings, the trial

court concluded that the only corroborative evidence was the statement of

the accused under Section 108 of the Act and the Department had failed to

prove that the accused had not declared the foreign currency before the

"proper officer", nor was it able to establish that the accused had requisite

knowledge or dishonest intention to fraudulently evade or attempt to evade

the duty chargeable on the articles. Lastly, it was held that as the case of

the petitioner was that the accused had attempted to evade the prohibition

imposed on the export of foreign currency, it was necessary for it to place on

record the details of such prohibitions to ascertain and determine the extent

of the attempted evasion, which was not done. In these circumstances, it

was held that the prosecution had failed to prove and substantiate its

allegations under Section 135 (1)(a) of the Act and as a result, the accused

was acquitted.

13. The submission of the counsel for the petitioner that the accused

retracted his confessional statement belatedly and he did not discharge the

burden of proving that the said statement was obtained from him under

threat, duress or promise, is to be seen in the backdrop of the facts of the

case in hand. It is a well settled legal position that confession can form the

basis of conviction, as held in the case of K.I. Pavunny (supra) and

reiterated in the case of Rehmattullah (supra), M. Prabhulal (supra) and

Kanhaiyalal (supra), but it is also true that each case has to be seen on its

own facts. The judgment in the case of K.I. Pavunny (supra) relied upon by

the counsel for the petitioner itself raised a question as to whether the

retracted confessional statement requires corroboration from any other

independent evidence. After examining the facts of the instant case, the

Supreme Court held that the rule of prudence and practice does require that

the Court seeks corroboration of the retracted confession from other

evidence, so as to implicate the accused in the crime and each case requires

to be examined in the light of its peculiar facts and circumstances in which

the confession came to be made.

14. In the instant case, the trial court cannot be faulted in seeking

corroboration of the statement of the accused, from the other evidence on

the record, for the reasons that the statement made by him under Section

108 of the Act in the early hours of 29.09.1998, was retracted by him on the

very next day, when he appeared before the learned ACMM. A perusal of

the impugned judgment shows that the trial court sought to seek

corroboration of the retracted confession of the accused from the other

evidence on the record, namely, the testimony of PW1 and PW2 and the

Panchnama, but was completely dissatisfied by the prosecution evidence in

that regard. The testimony of PW1 is relevant. The said witness admitted

the fact that he did not know the person who was the author of the notice

(Ex.PW1/C) issued to the accused under Section 102 of the Act. He deposed

that he could not identify the handwriting of the said person, though he

admitted that he had signed the same. PW1 was unable to state in his

cross-examination as to the significance of the handwritten No. "S-

39/99" and the author thereof. He admitted that the seals on the back side

of the envelope had been broken and there was some interpolation made

and further that on the slip, the name of the accused was not mentioned

though his own signatures were there. He admitted in his cross-examination

that the seals on the Panchnama were broken partially and he did not

remember the initials on the seals. He could not give the names of the

witnesses of the Panchnama and as to how they reached at the spot.

15. Contradictions in the deposition of PW1 and PW2 on material

points were noticed by the learned ACMM, particularly, the manner in which

PW1 had taken away the currency to some other place on the ground that

the same had to be weighed. This fact was contradicted by PW2, who was

the superior officer of PW1 and stated in her cross-examination that she was

not aware of the fact that the seizing officer had taken out the currency from

the departure hall for the purpose of weighing. Pertinently, neither of the

two independent witnesses to the Punchnama were examined by the

Department, despite opportunities given to it and most materially, there was

no corroboration of the testimony of PW1 on the aspect of seizure. Lastly,

the absence of the name of the uniformed customs officer, who first

intercepted the accused at the customs counter and questioned him as to

whether he was carrying any foreign currency and contrabands in the list of

witnesses and failure on the part of the Department to produce the said

officer in evidence, despite a specific admission by PW1 in his cross-

examination that he had met the said officer on a number of occasions even

after the incident and was well aware of his identity, were all factors which

weighed with the court below, to acquit the respondent.

16. The contention of the counsel for the petitioner that the "proper

officer" in relation to Section 77 of the Act could even mean PW1 and it was

not necessary for the Department to have produced the uniformed customs

officer, who first intercepted the accused, is noted only to be rejected. The

term, "proper officer" is defined in Section 2(34) of the Act and means the

officer of customs, who is assigned those functions to be performed under

the Act by the Board or the Commission of Customs. On the relevant date,

the Custom Counter was admittedly manned by the uniformed customs

officer to whom the accused, as the owner of the baggage was required to

make a declaration of its contents and he qualified the definition of "proper

officer" under Section 77 of the Act. It was therefore incumbent for the

petitioner to have cited the said officer as a witness and to have produced

him in the witness box to establish its case that the accused was intercepted

by him and asked whether he was carrying any foreign currency, to which he

replied in the negative.

17. As regards the judgment in the case of State of Punjab (supra)

relied upon by the counsel for the petitioner to contend that once it is proved

by the prosecution that the accused was in physical custody of the currency

notes, it was for him to prove that he had not committed the offence by

showing that he was knowingly not in possession thereof, in the instant

case, the respondent never denied possession of the currency notes.

Rather, the learned ACMM noticed the fact that the respondent was

consistent in his statement that he had shown his purse to the customs

officer, who took him downstairs to let him know if the declaration was

required to made and further that he was never intercepted by any person

or questioned and he had himself approached the customs officers and

informed them that he was carrying certain amount of currency for which,

he enquired whether any declaration was required to be made by him.

18. All the aforesaid facts and circumstances when taken together,

leads this Court to conclude that the decision arrived at by the learned

ACMM, on the basis of the evidence on the record, is a plausible one. There

does not appear any substantial or compelling reason for this Court to take a

different view from that taken in the impugned judgment. Nor is it a case

where admissible evidence has been overlooked. The retracted statement of

the accused under Section 108 of the Customs Act had to be examined in

conjunction with the other corroborative evidence on the record. When so

examined, there does not appear any serious infirmity in the view taken in

the impugned judgment; nor can it be stated that there has been any

miscarriage of justice in acquitting the respondent.

19. Having carefully perused the impugned judgment of acquittal,

this Court is satisfied that the same does not suffer from any manifest legal

error or perversity, which deserves interference. The basis of arriving at the

impugned order is found to be reasonable and plausible and ought not to be

disturbed. The impugned judgment is therefore upheld and the leave to

appeal against the same is declined. The petition is dismissed.

                                                            (HIMA KOHLI)
SEPTEMBER       27, 2010                                       JUDGE
rkb