Madras High Court
Unknown vs A.Dhanapal on 7 June, 2023
Crl.A(MD)No.58 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.58 of 2009
The Assistant Commissioner,
Customs Department,
Tuticorin.
O.R.No.2 of 1998. ... Appellant/Complainant
Vs.
1.A.Dhanapal
2.A.T.Mydeen
3.Janarthanam
4.N.Ramesh
5.Rahman Sait @ Nathan
... Respondents/Accused Nos.1 to 5
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 respondents by the Additional Chief Judicial
Magistrate, Madurai in C.C.No.2 of 2003, dated 23.05.2008 and
convict the respondents in accordance with law.
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Crl.A(MD)No.58 of 2009
For Appellant : Mr.Arul Vadivel @ Sekar
Special Public Prosecutor
For RR 1 & 5 : Mr.V.Kathirvelu
Senior Counsel
for S.M.A.Jinnah
For R – 2 : Mr.M.Ajmal Khan
Senior Counsel
for M/s.Ajmal Associates
For R – 3 : Mr.S.Jothimani
Legal Aid Counsel
For R – 4 : Mr.C.Mayilvagana Rajendran
JUDGMENT
On the basis of the complaint registered by the appellant
in O.R.No.2/1998 against the respondents and one another, 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, against which, the appellant/State preferred separate
appeals in Crl.A(MD)No.58 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 convicted
the respondents 1 to 5 in Crl.A(MD)No.58 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
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Crl.A(MD)No.58 of 2009
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.
2.Aggrieved by the same, the respondents 1 to 3
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 matters 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.When the matter is taken up for hearing, the learned
counsel appearing for the third respondent/Accused No.3 submitted
that pending the appeal, the third respondent/Accused No.3 died.
Therefore, the appeal is dismissed as abated as against the third
respondent/Accused No.3.
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Crl.A(MD)No.58 of 2009
4.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, Ettayapuram 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
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/-.
5.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
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Crl.A(MD)No.58 of 2009
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.
6.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. The Court marked the Inspection Report
as Ex.X.1. On the side of the accused, no one was examined and no
documents were marked.
7.On perusal of the oral and documentary evidence, the
trial Court found the respondents 1 to 5 not guilty for the offences
under Sections 132, 132(1)(a)(ii) and 135A of the Customs Act and
acquitted them from all the charges. Aggrieved by the same, the
appellant preferred an appeal in C.A.No.58 of 2009 on the file of
this Court.
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Crl.A(MD)No.58 of 2009
8.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 respondents. 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 respondents on the ground that
the materials 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.2. 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.2, Ex.P.7 and Ex.P.10. 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,
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Crl.A(MD)No.58 of 2009
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 respondents by the Commissioner was
confirmed and the same was not challenged before any court of law
by the respondents. 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 persons, the prosecution proved its case
beyond any doubt. Without considering the above facts and
circumstances, the trial Court mechanically acquitted the
respondents and as such prayed for convicting the respondents.
9.Per contra, the learned Senior Counsel appearing for
the respondents would submit that there are five accused in
C.C.No.2 of 2003. In order to prosecute them, the prosecution
accorded sanction from the sanctioning authority. However, the
sanctioning authority was not examined by the prosecution and the
order of sanction was marked only through P.W.2. The alleged
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Crl.A(MD)No.58 of 2009
sandalwood was allegedly seized from the godown owned by one
Kesavan. That Kesavan was not at all added as an accused. In fact,
he was not at all examined by the prosecution and his statement
also was not recorded by the appellant. While seizing the material
objects, two witnesses were present in the scene of occurrence and
they were not examined by the prosecution in order to prove the
seizure. Further, the appellant has no jurisdiction to seize the
sandalwood which was kept in the godown. In fact, the forest
officials also proceeded as against the respondents in separate
proceedings and they are pending. That apart, already adjudicating
authority adjudicated the issue and imposed fine against the
respondents. Though the learned trial Judge inspected the office of
the appellant and verified the materials which were allegedly seized
from the accused persons, the sample of the material objects were
not produced before the trial Court in order to prove its case.
Further, he submitted that the prosecution also failed to prove that
the materials which were allegedly seized from the accused are
sandalwood. The said fact was categorically admitted by P.W.2 and
as such, the prosecution failed to prove its case beyond any doubt
and the trial Court rightly acquitted the respondents. In order to
substantiate his contentions, he relied upon the following
Judgments:-
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“(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.”
Hence, he prayed for acquittal of the respondents.
10.Heard the learned counsels appearing on either side
and perused the materials available on record.
11.The trial Court acquitted the respondents on the
ground that no evidence was shown to prove that the respondents
are 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
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Crl.A(MD)No.58 of 2009
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 respondents 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.
12.On perusal of the deposition of P.W.2 revealed that
the sanctioning authority was not examined, however, the order of
sanction was marked through him as Ex.P.1. 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.
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Crl.A(MD)No.58 of 2009
13.It is relevant to rely upon the concerned portion of
the evidence, which reads as follows:-
“JiwKfj;jpw;F btspapy;> f];lk]; Vhpahtpw;F
jhz;o Jhj;Jf;Fo efUf;Fs; re;jdf; fl;ilfs;
itj;J ,Ue;jhy; Rq;fr; rl;lj;jpw;F fPH; Fw;wkhfhJ vd;why;
nehf;fj;ij bghUj;J mika[k;. mj;jifa nehf;fk; xU
tHf;fpw;F g[yd; tprhuiz nkw;bfhz;l gpd;g[ jhd; bjhpa
tUk; vd;why; rhpjhd;. gpog;gl;l re;jdf;fl;ilfs; gw;wp td
,yhfhtpw;F bjhpag;gLj;g;gl;lJ.”
14.Thus, it is clear that the sandalwood was kept in the
godown and not in the jurisdiction of the appellant. That apart, he
also informed about the same to the forest department and they
proceeded against the respondents 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 first 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 respondents.
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Crl.A(MD)No.58 of 2009
15.The learned Senior Counsel appearing for the second
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.
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Crl.A(MD)No.58 of 2009
(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.
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(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
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”.
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Crl.A(MD)No.58 of 2009
16.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
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.
17.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
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Crl.A(MD)No.58 of 2009
respondents 1, 2, 4 and 5 and the Criminal Appeal is liable to be
dismissed. Accordingly, the Criminal Appeal is dismissed.
07.06.2023
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NCC : Yes/No
Index : Yes/No
Internet : Yes
ps
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Crl.A(MD)No.58 of 2009
To
The Additional Chief Judicial Magistrate,
Madurai.
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Crl.A(MD)No.58 of 2009
G.K.ILANTHIRAIYAN, J.
ps
Order made in
Crl.A(MD)No.58 of 2009
07.06.2023
(1/2)
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