Karnataka High Court
The Asst Collector Of Customs ... vs Prabhakar Shetty (Dead) on 6 September, 2010
Author: N.Ananda
Bench: N.Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 06TH DAY OF SEPTEMBER 2010
BEFORE
THE HONBLE MR.JUsTIcE N. ANANDHA4':-A
CRIMINAL APPEAL No.3 16/2003' . __ A
BETWEEN: .- " -- «.
The Assistant Collector of Customs (Preifeiitivel A
New Custom House T '
Mangalore. . _ V p _
[By Sri.Y.Hariprasaci, Senior Cent.raI'_G0vern1ne1:t Standingpcounsel) *
AND: =
1. Sri.Prabhakar Shetty (Dead) .e
. Deleted
2. Leo Sequeira (Split) _ 19*' V _
3. John Bastin Lopes, 55..Years C
S/0 BastinvLopes_, lrli:_rematl1:i{3:.sa:taj{;ed
Honnavattils Ufgitara. A
4. Sudhaliar Aiias.._vSuidha,_ 3-2, Years
S/0' Late Sri .KaczyaV, 'Mptx1a1:;etta
Near S.t.John's. Chu'1*ch",*Shankarapura
P. O.Udup1' 'i'a1ul{_, [D_.K.«]... 5 ...Respondents
(By s ' ~ SAriyuths.AS.Vi'shwajith Shetty, Advocate for R-3;
H.»Ivia1lana.goud, AAdvo_c_ate for R-4}
_'AI'hi.s',appeal is filed under section 378(1) Cr.P.C., to set
"a_s_icleA judgtrient dated 04.11.2002 passed by the 11 Additional
~Civi1«JL'1dge.__{S~ij."Dn.} 81 C.J.M., Mangalore, Dakshina Kannada in
C,,Cl.No.lO(i;'._1A995, acquitting the respondents-accused 3 8: 4 for
an"'--oifencev'punishable under section 135 of the Customs Act,
1962.
This appeal coming on for final hearing this day, the Court
'deliirered the following:
.. up . .
JUDGMENT
J?
This appeai is filed by the Assistant Customs (Preventive), New Custom House, 1\/fangaiioret, 1 through Senior Central Governmerit" 'S.tanding"f3'ounse.1 against acquittal of respondents/accused'13 4;'{hereina'fter_.T'f'V referred to as accused 3 & 41)» AoffenceVf'QuVr§is11a'dle under section 135(1)(b} of the 1962v.(forf§short, /che Act'). Accused even before summons was served' on" Sequeira was abscondip was separated.
Accused _ for aforestated offence. -- ' 2; is ijrosecution that on 12.01.1993 at 7 p_;m.,_ on receibtvof credible information about smuggling of «sihfer detecting party consisting of PW2-- PW3--P.Vijayan 81 PW4--Pakshi Rajan, who were tiienefiefirorking as Inteliigence officers in the office of ncustoins Officer at Mangalore, proceeded to B.C.Road cross, [\)- CT' /fix"
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Bantwal and they were waiting for a lorry coming from Mangalore side. At that time, lorry bearing No.CNX 5524 driven by accused No.2 came from Mangalore sidecrwhen detecting party tried to intercept, the driver didjriot' the lorry, therefore, said lorry was chased for thereafter it was intercepted. Acctised::NoaV_2«_Wa'5-- the. lorry and accused No.1 waspthe ownerfof 1orr3,?;,_1"%iccuse:d."3 4 were sitting in the cabin of On interrogation, accused No.2 told that lorry wasp_use(j"'f(§r--:ftyfifiaportationfvvof fertilizer bags. However, on further detecting party found that acctased had conceaied..Vsi1y'er bricks in gunny bags officers of detecting party removed fertilizerA:_:'ba'gs:fA"and opened gunrry bags, which coI1_t.ained4ii: _a11.7'5 s':i1ve'r bricks. At the time of interception, 1» to 'were' apprehended, iorry and silver bricks "were ':'seized._ Due to security reasons, silver bricks were Office of Collector of Customs at Mangalore. The silver bricks were seized under mahazar. The statements by accused 1 to 4 under section 108 of the Act were 4 recorded by PW2--S.Padmanabhan. The complainant secured PW9--Ganapathi Shet [a goldsrnith} and requested him to examine the contraband and give a certificate regarding purity. PW9 after inspection gave a certificate silver bricks was 999 and they were of foreign V' detecting party also sent sampIesmof'si.1ver to":rni'r1.t master at Bombay and obtained "RAeport'v_as"pe'r The sanction as per Ex.P.1'0.g:..'Was ob'tairied'.= toldoriosecuteiw accused 1 to 4. The comp1aint'"wa_:s on &2'3;1fZ.41994 and learned Magistrate took on 10.05.1995.
3. on_..b};:h;-_1r {of gp:jose¢udf:ijen,' ;>'Ws.1 to 10 were examined. as" per Ex.P.1 to Ex.P.10 were marked. 'Onibenialf defence, accused 3 & 4 were examined as.,1§}Wi'.& V learned trial Judge on appreciation of evidence afid eidafterl hearing learned counsel for parties acquitted _V accuse.dgo~,& 4. K)' 5
5. The learned Counsel for accused 3 8: 4 has contended that in View of provisions under section 377(2) Cr.P.C., an appeal filed by the Assistant Collector of Customs, Mangalore represented by senior':
Government Standing Counsel is not maintain'a:b:le;jV" it h
6. In the judgment reported';
the case of ASSISTANT cotiigcroaplobt MADRAS Vs. V. the' Supreme Court has held') thatlltlieiljcoinplainant has full say only in an appeal against.'aclquittal_.:iii2.d:er'section 378(4) of the Code of Criminal no locus standi to movelyunder(sec-tion"Vl'377{2) of the Code of Criminal Procedure..__ ' it Tliis isfllriotlan appeal filed under section 377(2) ..for4lenli;ancement of sentence. This is an appeal filed a'g_ainstV_ judgment of acquittal filed under section 378(1) 3' . Cr.P.ClTl1erefore, objection raised regarding maintainability , 4.]: appeal has no basis. N, ' (QL,,-;«t-Q. ,
8. The learned trial Judge has acquitted the accused Nos.3 and 4 by recording the following finclings:
1) The prosecution has faiied to proyecv seized contraband was of siiver__ Vantd was a foreign origin.
2) The prosecution has failed to. prove-".i,thatf' accus-ed;
Nos.3 and 4 had conscious po'sse'ssion°of the said contraband V 'sa~n_d _contraitJandp was seized from possession of accttsed' 3:'am1'4.,.'.;' .
3) Thg. 19:-osecutioni Valid sanction to prosecuted'thea.accus,ed; The evidence in proof of interceptionf'"of"'~th~e vehicle and the seizure of c°onti"aba';nd"vi_sfr1ot satisfactory. I.n7--view of abatement of appeal against accused _N'o_, of case against accused No.2 and acquittal of""---ace.used"' 3 & 4, the following points wouid arise for if M if i' 4." ' = A. df:_terIn'ination: ~ E = N 10 jeeps towards Bantwal. They reached B.C. road cross at 8.00 pm. At 8.45 p.m., they saw lorry bearing No.CNX 5524 coming from Mangalore side. They gave a signal to stop the lorry. The driver did not stop the lorry. ltllfi lorry to a distance of 2 kms and iI1l;€I'Cept§Cl_>.'fifl'..(3 Aiteryb intercepting lorry, they questioned' the..vciriver-- (accused No.2}, who told them thatfihe was_ttainspo'rting, chemical fertilizer. He gave invoices insuppaort of the same. PW--3 and others que"stioned'"'accuse'd.._no.2that they have credibie information that for transporting smuggled si_l.ver_ briclzs. 1. A;ccused'~.No.2 contacted accused N0. 1 they had concealed gunny bags 'containing."silve'r--~._lo1ieks under the bags of chemical fert_i1i,Zers."""Thereafte'r,Vthe tarpaulin of lorry was removed. '' V' the bagsvvof' chemical fertilizers were removed in the found gunny bags containing silver metals. then;'c:ii:'l:;was 11.00 pm. For security reasons, they broughii; the vehicle and the accused to the office of DRI at .Mai_1gal0re. PW3 has deposed about the presence of panchas N' ,,-~.__,--fl/\_/K/u--£Vr .
ll namely, PW--5 Ravi and PW--6 Jayaram. PW3 has deposed that he collected the names of persons travelling in in the office of DRI at Mangalore. At this relevant to state that PW--3 has notAgdeposed"t'hatv intercepted the lorry, in addition to acsgrttsedd other persons were sitting of has not deposed that they to the customs office at Mangalr.-re .;%11o;-1g.W:th.four persons.
13. At state that PW--3 has deposed; intercepted, they did not seize _.the lléagjnd to purchase and transpvortationvllvefj fifertilizer from MCF (Mangalore Chemical"trfertiliierjdlvlangalore. PW--3 has deposed; when acot§.ised~ No.4 " '~SL1dhakar was searched, he was not in . po,ssessio11_of any incriminating materials so also accused H .;ohtli .Bas'tin Lopes.
" I-Wt'-3 has admitted that the gate pass revealed that the of chemical fertilizers were loaded into the lorry on 1U~ t;'k'Q/\--"'*~"P'*"~1Q-2.
12 8.1.1993 in MCF Factory at Mangalore. PW--3 has denied the suggestion the when the lorry was proceeding near Khanapur at 7.30 a.m., on 9.1.1993, the housing pipheotf the lorry snapped and the lorry had been parked of the road near Khanapur. PW--3 has denied"~-that.:'*accusedpp9"~ No.3 was proceeding in a car, accused' 'l"lVo:$3 Stoppedrrpthep car and he was enquiring accused No.2. as to hispresence 'near, the place.
14. PW--4 Paksihi, was 'jai1.o£i1e;f senior Hlntelligence Officer was a member of has deposed that at the relevaht time, in the DR] office at Bangalore. the Assistant Director of DR} at Mangalo're__p lhasx' services. Therefore, he left Bangalore one-..:l_1.1_.1993 and reached Mangalore on .9 :1:2_. that day, at about 7.00 p.rn.. PW--3 informed ._ received credible information regarding transportation of smuggled silver bricks in a lorry bearing 9' *1'Io:CI§X 5524. Therefore, PW--3 and PW«~4 secured (U. 14 No.2), John Bastin Lopes (Accused No.3) and Sudhakar (accused No.4). The personal search of accused did' yield any incriminating materials.
At this juncture, it is relevant to stateiP'»l?g4.VVl1as not' deposed that accused Nos.3 and of the lorry when the 1oI'1y_v'"V*¢zas interceptfedf. has-if deposed about the presence yofuiaecused 2 when the lorry was interceptedf pHoweizer," has deposed about the presence o17accused"Nos.3'andIi office of DR! at Mangalore. _ t1'r_ne,Hl3W--5 Ravi was working as gold sdinith at ._dex,>;felers Work at Mangalore. At
12.},1993f'atl_:Vabo.ut p.m., he was summoned to the at'vi\/Iangalore, so also PW~»6 Jayaram. Both dléireached DRI office. Thereafter, PWs.5 and 6 a car to B.C.road. They were waiting in that place"ti1Ii. 9.00 pm., At that time, they saw a lorry proceeding "if: Mangalore side to Bangalore side. The officials of the TV (ma.
16 PW--6 was not treated as hostile witness. When the lony was intercepted, if accused Nos.3 and 4 the cabin of the lorry and they had been brought of DRI at Mangalore alongwith :the"ior1_y--.'p PWs.5 and 6 who all along were party would not have omittled1.'to Ahxstategthe ""1;§l1?és'ei:1ce of accused Nos.3 and 4vin__the xyhen the lorry was intercepted. They to depose that accused Nos,3.:and the office of DRI along with rflaereiore, the presence of accused--1.Nos?3 was intercepted near B.C. road-- has "beyond reasonable doubt .. 17. aceTase'd have denied to have given statements pwdhen:,,y'they..'were«examined by the officers of the Customs the office of DRI. PW»? John Simon has 'deposeVd.Qth.at on 13.1.1993, he recorded the statement of Sudhaliar (accused No.4) in the office of DRI at Mangalore. ."_the relevant time, he was working as an Intelligence ,\; ' ,:>:£\xu£/w'-J7\* 1 17 Officer, DRI at Bangalore. He had come to Mangalore on 11.1.1993, as per the directions of Deputy Director:1*DRI, who was in charge of DRI in the State of Karnatalia'. no.4 Sudhakar is an illiterate person.."*i'lierfefore,QPW--7~, explained him the provisions of Siectiorz afigct. He has identified the statementcf Sudhlakar it During cross--examinati.on',.._ he has" --reite{'ated that accused no.4 -- Sudhalcar. statement as per Ex.P~8. At this'junctur'e;' '1'e1e_vant state that accused Nos.3 and lprcducedjp' the jurisdictional Magist1*atel;lonl.l13:1 'pervthe evidence on record, the statement' of was recorded on 13.1.1993. 18°'.._I_'t"is records that on 14.1.1993, PW-
2.Pl,adriianabhan: hadlsubmitted a remand application giving . the interception of loriy and seizure of silver 'lT_v».1.3;t'paragraph 4 of the remand application, it is stated-fithatl accused No.3, so also accused No.4 have given .1 * their statements 11/ s 108 of the Customs Act. In the remand mQ1 i...i.,, .
18 application, the gist of the statement made by accused Nos.1 and 2 is stated. As regards accused Nos.3 and 4, apart from stating that they have given statements u / s 108 of Cusgtoms Act, the gist of their statements is not reiteratecli' aiso not stated that the statements given by them
19. PW--8 E.M.Soori has depvosedthatea"recgorrded the statement of accused No'.«3. J0v};1i3_V_L51gS'£i11vV.'LIQa(}{_V34fV:_VVS, Ex.P--7.
In the discussior:1"':g«tna.fA1e isLip'ra,VyAI"~h_ave referred to the remand application, gisVtVof_--.s'tatements is not stated. It is "'s1;a'ted that the statements given by accusedvv"n.o§3.Vand _ --revea;1ed incriminating circumstances. E20.yVg_PW--u9"'C~anapathy Seth has given evidence relating ' ~eAxa_rnination of silver bricks in the office of DRI. I-Iis " evidence not controverted. - Me'/L 20 failed to prove the statement said to have been given by accused No.4 Sudhakar.
23. PW--8 E.M.Soori has deposed that he recorded the statement of accused No.3 John Bastin the Presence of Superintendent of DR}. As per__the evfidenlce--lof V' these witnesses and statements o:I'Jaccused<.Nc»s..3_"and4; one Ganesha was smuggling silver bricks.V_and hehvad minded the smuggling activities «and thehiorry iiefaslllmovingl from place to place as._per;his'e directions. ""'i'here was no investigation against said 7Ganeshiaf'_'V.and he was not prosecuted. _1KI£ie1a_ ac§::cus_ed«: fi.led"_gbail3ai)plication, at the earliest have denied to have made any statements beforgel Officers.
is . Agcculsed AI\"o;3 "examined as DW~1. He has deposed ' fi1a.t€'oii"iA1131'.1993,v""atAVabout 5.00 a.m., he was traveling from HonilaifaraivtloBelgaum in a tourist car. When he was travelling in 'a car nearejijihanapura, he saw a lorry had broken down and it hadllheen parked by the side of the road. Accused No.2 ,,:l." he knew earlier/was found near the lorry. He enquired V\'~C."'- _' -*7"
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accused No.2 as to why he was standing there. At that time, 4 or 5 persons surrounded him and brought..jl1i:m._l'and questioned him as to why he was talking to Accused No.3 told him that accused and therefore, he was talking him; A. retained by the officers of tJ'ie'«--.customs: got!' repaired and on the said day accused No.3 was brought __to DRI office at Mangalore. He had also..seen the lorry. During3__.:v apart from 'at statement as per Ex.P--7, it was was travelling in a lorry bearing";T\io';Ci\TX.--5EEl:2h4latriabout 8.00 p.In., on 12.1.1993 in order to helb a:cc'used.lNols..1 and 2 to transport the smuggled b1"32ck's._in theflllorry. It was not even suggested to him 'Vavyare that silver bricks had been concealed under thelifeitilizer bags. The evidence of DW--1 that the lgloriy "xvaTs intercepted by the customs department near f\l« c>(Q'~9M«g\- .
22 Khanapur on Bangalore-Bombay road has not been controverted. C Accused No.4 Sudhakar has given 4' He has deposed that he had been Cengagedhbjfi to work as a Cleaner. Therefore, Udupi. He has deposed thatgwhen the' near Khanapur, housing pipe Accused No.3 came in a car anfdffheAuffas;_taiking.:t0__accused No.2. At that time, the Custom firld apprehended them. He hasftfifénied that the lorry was intercepted 'C 7 H it isufrflevlevant to state that in the seizureAinaha.zar.:rec§)rd'e*d_:in the office of DRI, during night of 13.1.1993 started."-that the registration certificate of the and the inf/'oices were seized. However, these _ documen_ts»Vnot produced before the Court. This was n'et;Jessary'in--.V_v1¥ew of the fact that the lorry filled with bags of ".._chemical':. fertilizers had left the Mangalore Chemical A *:"FAeif'ti"I«i.zer, Mangalore on 8.1.1993. According to averrnents of 'V1: (\/é:.»~.¢»1§'/'- ' 23 complaint. lorry was intercepted during the night of 13.1.1993. The prosecution has no case that all along the lorry had been parked near MCF Bangalore from 8';pl';'»l993 till it was intercepted on 13.1.1993. The complainant':
have produced the invoices to show that oi':.'_chemical_p it fertilizers had been purchased MC-F The version of the complainant thatdthelorry interc-4eptecl--..p near Bantwala has not been su«l:):Vstantiat'erl_V_by jthellprolductionll of documents. Thouglrthe accusedvv vNos.1 and 2 would reveal that one wa.smthfe.ple_ader and he had master srn_uggling'«of"silver no effort was made: to lpéepnm-¢ prosecute him. There was no investigation "of1'icials as to the place at which silverhriclts we1'e7'loaded: into lorry and place at which they . were c"ove"1"ed withmhags of chemical fertilizers. From the Vlaactsr by evidence, 1 find that accused No.1 had dornain.. contraband and he had hired the lorry of accused No.2 for the purpose of transporting contraband.
T_he'p_'evidence on record does not disclose that accused Nos.3 % N. Qgieetwfl,-._.
24 and 4 were present when the bags containing silver bricks were loaded into lorry and they were covered with the of chemical fertilizers.
In view of the above discussion, .1 4hol_d.Vthat'.'the"case tofu "
the prosecution that accused and when the lorry was intercepted is not yybcyondd"
reasonable doubt. ;fl'he witnesseshppindependent witnesses (PWs--5 and--..V:«6). :'1F1_¢tf¥'§?€:.H 'fi'é.t:..:':Cieposed about the presence of accu.sed:.'1\Ios.:£i the lorry was intercepted... 1: produced the documentg. officials of the Customs 'rnovernents of the lorry from 8.1.199t§",fi.li at about 9.00 p.m., on
13.§§.ll993. Above all, the evidence of the prosecution does » not reveabthat accused. Nos.3 and 4 were aware of the ~.co--n.eeValtnent~1of"silver bricks in the lorry. They had conscious po"ssesVsio'11";of silver bricks. Even if the statements made by accusVe'd u/s 108 of the Customs Act, are taken into consideration, they would reveal that accused Nos.3 and 4 26 DRI, Mangalore, his colleagues and independent witnesses intercepted lorry. It is not stated in the complaint that PW3-- P.Vijayan and PW4--Pakshirajan were officers who led detecting party and intercepted the lorry. H' In the complaint, it is stated that lorry distance of two kilometers and thereafter d The driver of the car of examined before trial Court._It_ "in ;
accused No.2 was in possession:ofcertainlidocurrients such as invoices, Central instructions and material delivery vA;ngpv3';ngalore Chemicals & Fertilizers'Ltd,,7Mangalore. _T1'iese documents were issued on 08A.O1.'1993.»_l'5{hes'e.._:udo'cuments were not produced to showrriovelrnentse of lorrvafter 08.01.1993. The production of
- «these Edocurnents vvas necessary to prove movements of lorry llttllllit "intercepted on 13.01.1993. The nonwproduction of these doctiinents would probabalise the version of defence that ~.1orry had gone out of order near Kl1C:fpur on 28 of the above discrepant evidence, these statements cannot be used as corroborative evidence.
28. Therefore, the prosecution has faiied to'.:p»rove beyond reasonable doubt that on 12.01.1993 accused 3 & 4 were smuggling 75 silver K 2561.130 kilograms in lorry beatir'1JglfAlV\Tlo'.CN.Xg5i52§i reasons to believe that silver bxicks were A' liable, '"for'r.p confiscation under section 1 1 the Act," therebyllconimitted an offence punishable .under section; 1§V3.'T>.[p1)[b] ofthe Act.
29. The competence been called into question,» Th_e'_' --sar1ctionT..'ordervllasVbefr :EX.P.10 indicates that the Collector of Customs at Banga1o're onV.pe'rtisa.l:lA"C-f"panchnama dated 12.01.1993 and A.-voluntarv ws.tate'n1ents dated 13.01.1993 accorded saiictioffiutoprosecuteaccused 1 to 4. of records, 1 find that no mahazar was prepared.loinV.12.01.1993. There is no specific reference to vo1un'tary statements given by each of the accused. The Sanctioning Authority without stating whether accused 1 to ,.,_, DOOM Wit