Madras High Court
Unknown vs K.M.A.Alexander on 7 June, 2023
Crl.A(MD)No.59 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 07.06.2023
CORAM
THE HONOURABLE MR. JUSTICE G.K.ILANTHIRAIYAN
Crl.A(MD)No.59 of 2009
The Assistant Commissioner,
Customs Department,
Tuticorin.
O.R.No.2 of 1998. ... Appellant/Complainant
Vs.
K.M.A.Alexander ... Respondent/Accused No.6
PRAYER: Criminal Appeal filed under Section 378 of the Code of
Criminal Procedure, to call for the records and set aside the
acquittal of the respondent by the Additional Chief Judicial
Magistrate, Madurai in C.C.No.4 of 2004, dated 23.05.2008 and
convict the respondent in accordance with law.
For Appellant : Mr.Arul Vadivel @ Sekar
Special Public Prosecutor
For Respondent : Mr.V.Kathirvelu
Senior Counsel
for S.M.A.Jinnah
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Crl.A(MD)No.59 of 2009
JUDGMENT
On the basis of the complaint registered by the appellant
in O.R.No.2/1998 against the respondent and five others, after full
trial, the learned Additional Chief Judicial Magistrate, Madurai, vide
separate Judgments and Orders, dated 23.05.2008 passed in
C.C.No.2 of 2003 and C.C.No.4 of 2004, had acquitted all the six
accused. On separate appeals, the appellant/State preferred
appeals in Crl.A(MD)No.59 of 2009 and Crl.A(MD)No.59 of 2009
before this Court. This Court heard both the appeals together and
passed a common Judgment and order, dated 19.10.2019 and
23.11.2019, thereby set aside the order of acquittal and convicting
the respondents 1 to 5 in Crl.A(MD)No.59 of 2009 for the offence
under Section 135 (1)(a)(ii) r/w 135A of the Customs Act and
sentenced them to undergo imprisonment of one year each and to
pay a fine of Rs.50,000/- each, in default, to undergo six months
Rigorous Imprisonment and also convicted the respondent in
Crl.A(MD)No.59 of 2009 for the offence under Section 135 (1)(a)(ii)
r/w 135A of the Customs Act and sentenced them to undergo
imprisonment of one year and to pay a fine of Rs.50,000/-, in
default, to undergo six months Rigorous Imprisonment.
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Crl.A(MD)No.59 of 2009
2.Aggrieved by the same, the respondents 1 to 3 in
Crl.A(MD)No.58 of 2009 preferred appeals before the Honourable
Supreme Court of India. The Honourable Supreme Court of India
vide Judgment dated 29.10.2021 set aside the common Judgment
passed by this Court and remanded the matter back to this Court
for fresh disposal. While remanding the matter, the Honourable
Supreme Court of India also observed that “all the questions of law
and fact would remain open before the High Court and the parties
would be free to address the High Court on all issues both on law
and facts”.
3.The case of the prosecution is that on secret
information, the Anti-Smuggling Wing of the Customs Department
at Tuticorin, conducted a raid in a warehouse situated at Door No.
111, Etayapuram Road, Tuticorin on 10.03.1998. During the raid,
large quantities of cardboard boxes were recovered in the presence
of three persons, who identified themselves as Rahman Sait alias
Nathan, Selvaraj and Sullan. They admitted that 419 cardboard
boxes contained sandalwood billet/sticks and 57 cardboard boxes
contained Mangalore tiles. All were kept for export from Tuticorin to
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Crl.A(MD)No.59 of 2009
Singapore clandestinely and to be delivered to one RN Contractors
Enterprise Company, Singapore. All were seized by two separate
mahazars in the presence of witnesses. The seized materials were
transported to the appellant's office. The sandalwood was valued at
Rs.96,52,800/- and Mangalore tiles were valued at Rs.10,000/-.
4.After completion of the enquiry, the appellant lodged a
criminal complaint as against six accused persons. During the
investigation, sixth accused viz., K.M.A.Alexander was absconded
and hence, the complaint against these respondents/Accused 1 to 5
has been taken cognizance in C.C.No.2 of 2003 on the file of the
learned Additional Chief Judicial Magistrate, Madurai, for the
offences punishable under Sections 132, 132(1)(a)(ii) and 135A of
the Customs Act. Later the absconding accused viz., the sixth
accused was arrested and another case has been taken cognizance
against him in C.C.No.4 of 2004 on the file of the learned Additional
Chief Judicial Magistrate, Madurai. A separate trial was conducted in
both complaints.
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Crl.A(MD)No.59 of 2009
5.The prosecution had examined P.W.1 to P.W.7 and
marked Ex.P.1 to Ex.P.13. The prosecution also produced material
objects M.O.1 and M.O.2. On the side of the accused, no one was
examined and no documents were marked.
6.On perusal of the oral and documentary evidence, the
trial Court found the respondent not guilty for the offences under
Sections 132, 132(1)(a)(ii) and 135A of the Customs Act and
acquitted them of all the charges.
7.The learned Senior Counsel appearing for the
appellant would submit that while allowing the appeals, this Court
correctly held that the prosecution proved its case beyond any
doubt as against the respondent. However, the Honourable Supreme
Court of India set aside the order only on the ground that this Court
passed a common Judgment against two appeals preferred by the
appellant against two separate order of acquittal by two separate
trials. Further, the learned Senior Counsel submitted that the trial
Court acquitted the respondent on the ground that the materials
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Crl.A(MD)No.59 of 2009
objects were not produced before the trial Court and it is a fatal to
the case of the prosecution. The sanctioning authority was not
examined by the prosecution, whereas the order of sanction was
marked through P.W.4. In fact, the learned trial Judge, inspected the
premises where the sandalwood was kept in the office of the
appellant. The mahazars were prepared and the same were marked
by the prosecution as Ex.P.3, Ex.P.6 and Ex.P.12. In the customs
cases, all the materials could not be produced before the trial Court,
since it was in large quantum and as such, the mahazar alone is
enough to prove that the materials were seized from the accused
persons. Further, any statement made before the customs officers is
admissible in evidence. During the adjudication process, the
accused persons were imposed fine by the adjudicating authority. It
was challenged before the Tribunal. Though it was set aside in the
adjudication proceedings again on the appeal, penalty imposed as
against the respondent by the Commissioner was confirmed and the
same was not challenged before any court of law by the respondent.
The photographs of the material objects were produced before the
Court and proved the materials which were seized from the accused
persons. Further, the customs officials are not the police authorities
and as such, the statements given before the customs officer are
admissible in nature. By producing the statement of the accused
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Crl.A(MD)No.59 of 2009
persons, the prosecution proved its case beyond any doubt. Without
considering the above facts and circumstances, the trial Court
mechanically acquitted the respondent and as such prayed for
convicting the respondent.
8.The learned senior counsel appearing for the
respondent would submit that even according to the case of the
prosecution, the respondent attempted to export the material object
to Singapore for which the appellant failed to produce any iota of
evidence to prove the said allegation. There is no iota of evidence to
show that the bill was fabricated in order to export the material
object to Singapore. On the information given to the various
department, they also proceeded as against the respondent and it is
pending. Therefore, the appellant has no jurisdiction to prosecute
the respondent, that too under the Customs Act. The authority, who
accorded sanction, was not examined by the prosecution to mark
the order of sanction. Further, the material objects were not
produced before the trial Court and no Form 95 was marked before
the trial Court. Therefore, the prosecution failed to prove its case
beyond any doubt and as such, the trial Court rightly acquitted the
respondent from all the charges. He further submitted that the
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Crl.A(MD)No.59 of 2009
order of acquittal cannot be disturbed by the Appellate Court unless
there are substantial and compelling reasons. 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 and prayed for dismissal of the Appeal. In order to
substantiate his contentions, he relied upon the following
Judgments:-
“(i) Chinnam Kameswara Rao and
others Vs. State of Andhra Pradesh reported in
(2013) 12 SCC 689;
(ii) Chandrappa and others Vs. State of
Karnataka reported in (2007) 4 SCC 415;
(iii) Animireddy Venkata Ramana and
others Vs. Public Prosecutor, High Court of Andhra
Pradesh reported in (2008) 5 SCC 368.”
9.Heard the learned counsels appearing on either side
and perused the materials available on record.
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Crl.A(MD)No.59 of 2009
10.The trial Court acquitted the respondent on the
ground that no evidence was shown to prove that the respondent is
Customs House Agents and they packed and kept the boxes and
had an intention to attempt to export Sandal Wood, illegally, to
Singapore. Admittedly, the sandalwood had arrived at Tuticorin two
months before, and arrangements were made to cancel the shipping
bill. Accordingly, it cannot be said that the accused had an intention
to evade to pay the customs duty levied by the customs department
by crossing the green gate and having escaped by wrong
declaration contravening under Section 135 of the Customs Act.
There are no documents on record to show that the accused forged
the documents and produced the same before anybody. That apart,
the prosecution failed to prove that the respondent with an intention
of evading in paying customs duty under Section 135 (1)(a)(ii) of
the Customs Act, had attempted to export carton boxes containing
prohibited sandalwood by means of forged documents thereby
causing revenue loss to the customs department and contravention
of Section 135A of the Customs Act.
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Crl.A(MD)No.59 of 2009
11.On perusal of the deposition of P.W.4 revealed that
the sanctioning authority was not examined, however, the order of
sanction was marked through him as Ex.P.5. He also admitted that
no independent witnesses were examined while seizing the material
objects. He also admitted that the alleged sandalwood seized from
the godown belonged to one Kesavan. That apart, he also informed
about the same to the forest department and they proceeded
against the respondent separately. The alleged sandalwood was not
confirmed by any expert opinion that the said objects are
sandalwood. He also admitted that there is no evidence to show
that the material objects about to export to Singapore. The
prosecution also failed to prove that the sandalwood belonged to
whom. Admittedly, the sandalwood was in the godown owned by
one Kesavan. He was not implicated as an accused, which is fatal to
the case of the prosecution. There is absolutely no evidence to show
that the respondent is the owner of the sandalwood. Therefore, the
prosecution failed to prove its case beyond any doubt and the trial
Court rightly acquitted the respondent.
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Crl.A(MD)No.59 of 2009
12.The learned counsel appearing for the respondent
relied on the Judgment of the Honourable Supreme Court of India in
Chinnam Kameswara Rao and others Vs. State of Andhra
Pradesh reported in (2013) 12 SCC 689, wherein it is held as
follows:-
“12.A recent decision of this Court in
Murugesan & Ors. v. State 2012 (10) SCALE 378 is a
timely reminder of the principles that were succinctly
enunciated in an earlier decision of this Court in
Chandrappa & Ors. v. State of Karnataka (2007) 4
SCC 415, in the following words:
“21..... “42. From the above decisions, in our
considered view, the following general principles
regarding powers of the appellate court while dealing
with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review,
re-appreciate 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
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Crl.A(MD)No.59 of 2009
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.” (emphasis supplied)
12. What, therefore, needs to be examined in
the light of the settled legal position is whether the
view taken by the trial Court acquitting the accused
was a reasonably possible view. If the answer is in
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the negative nothing prevents the Appellate Court
from reversing the view taken by the trial Court and
holding the accused guilty. On the contrary, if the
view is not a reasonably possible view the Appellate
Court is duty bound to interfere and prevent
miscarriage of justice by suitably passing the order
by punishing the offender. We have in that view no
hesitation in rejecting the contention that just
because the trial Court had recorded an acquittal in
favour of the appellants the Appellate Court had any
limitation on its power to reverse such an acquittal.
Whether or not the view was reasonably possible will
be seen by us a little later when we take up the
merits of the contention urged by the appellant
regarding involvement of the accused persons in the
commission of the crime”.
13.Thus, it is clear that since because the trial Court
acquitted the accused, the Appellate Court cannot interfere with the
order of acquittal without any substantial and compelling reasons.
There cannot be any dispute in regard to the legal proposition that
an appellate Court while entertaining an appeal from a Judgment of
acquittal would not ordinarily interfere therewith, if two views are
possible. In the case of acquittal, there is a double presumption in
favour of the accused. Firstly, the presumption of innocence is
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Crl.A(MD)No.59 of 2009
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. Further, 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.
14.In my view, in the case on hand, the prosecution
failed to prove its case beyond any doubt for the reasons stated
supra. Therefore, there is absolutely no ground to interfere with the
order of acquittal passed by the trial Court as against the
respondent and the Criminal Appeal is liable to be dismissed.
Accordingly, the Criminal Appeal is dismissed.
07.06.2023
(2/2)
NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.A(MD)No.59 of 2009
To
The Additional Chief Judicial Magistrate,
Madurai.
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Crl.A(MD)No.59 of 2009
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.A(MD)No.59 of 2009
07.06.2023
(2/2)
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