Bombay High Court
State Of Maharashtra vs Genu Yeshwant Divate on 10 March, 1988
Equivalent citations: 1988(3)BOMCR614, 1988(36)ELT410(BOM)
JUDGMENT Kotwal, J.
1. It is quite a disturbing feature that an incident that is alleged to have occurred on 9th of September 1978 was the subject matter of criminal prosecution which was decided on 7th of April 1981 on the first forum which being placed under challenge in appeal on this forum in the year 1981 is being concluded in the year 1988. In between the respondent-accused who was responsible police officer and who had put in about 40 years of service has retired in the year 1980.
2. The venue is Santacruz Air Port in this metropolis and the peculiar feature is that a Sub-Inspector attached to the Central Bureau of Investigation was accosted, apprehended and ultimately prosecuted by the officers of the Customs Department. On that night, at about mid-night time, a Preventive Officer of Bombay Customs was on duty at the Arrival Section at Santacruz Air Port. A flight from Gulf countries was expected to arrive and since the situation was sensitive the officers of the customs Intelligence were posted at the Air Port to keep a watch. That Officer noticed the present respondent-accused along with the one of his companions by name Deshpande emerging from the direction of conveyor belt and proceeding towards the baggage hall. Each was carrying a brief-case in his hand though the one in the hand of the accused was more sophisticated being a Japanese make. They were sighted by P.W. 2 Sherkhan who was attached to the Customs Department. He felt a little suspicious on account of the manner and the mode in which the accused was carrying the brief-case generating an impression that the brief-case was quite heavy and so much that the accused had to lean forward while walking. At that time P.W. 1 Samuel Raj who was the Preventive Officer of Customs was also on duty as Intelligence Officer. P.W. 2 Sherkhan told him about his own suspicion near the P.R.O's counter. P.W. 1 Samuel, therefore, to verify, accosted the accused and his companion. By that time the accused had kept the said brief-case on the ground. Instead of going towards the departure side they went through a small passage between the Customs Station Duty Officers' Office and water cooler for the public. However before they could enter the departure side they were accosted by Samuel Raj who asked them as to who were they and both of them told that they were C.B.I. Officers. They were asked to produce their identity cards. One in possession of Deshpande was checked by Samuel Raj and he was satisfied who did not feel it necessary to further check the identity card of the accused since that was accepted. He then asked the accused about the brief-case. Initially as per the allegations the accused gave no response, but immediately stated that he was not concerned with the said brief-case nor did he have any knowledge about the same and in any way it did not belong to him. The Assistant Collector of Customs one Shri Gehani who was stationed nearabout the spot was informed and was brought there and he also questioned the accused when a similar reply was given. It is thereafter that panch witnesses were called and the accused and the said brief-case were taken to some adjoining room. The accused was asked to produce the key. However, the accused stated that he did not have any key and in fact no key was found with the accused. By that time the other Officer Sherkhan had brought one Arab National who perhaps came by that Flight. On the suspicion that the bag might have belonged to him and he might have given it to the accused as the carrier. However, he also was not found in possession of the key to the brief-case and there was nothing suspicious against him and as the officers were satisfied about his bonafide he was allowed to go. It is thereafter that the brief-case in question was opened with a duplicate key by the Customs Officers and it revealed existence of 405 writ watches of foreign make valued at Rs. 61,350/- at the local market rate. The accused or even Deshpande had no valid documents for the legal import or acquisition of the said articles which therefore came to be seized under a reasonable belief that they were smuggled and thus liable to be confiscated. A detailed panchanama thereof at Exh. P-1 was recorded. The accused was interrogated and his statement was recorded on the spot. We, may observe at this juncture it-self that the said statement is absolutely ex-culpatory.
3. In due course after completing the investigation the papers were submitted to the Additional Collector of Customs who accorded the sanction and ultimately armed with that sanction the complainant - the Assistant Collector Shri Patil filed the complaint in the Court of the learned Chief Metropolitan Magistrate, Bombay being Case No. 41/CW of 1980 for the offences under Sections 135(1)(a)(ii) and 135(1)(b)(ii) of the Customs Act and Section 5 of the Imports and Exports (Control) Act, 1947 on the allegations that the accused was knowingly concerned in fraudulent evasion of the Customs Import duty and of the prohibition under the Imports and Exports (Control) Act in relation to the said writ watches and also he acquired possession thereof and was found concerned in carrying and removing the same or in any manner dealing with the same which he knew or had reason to believe were liable to confiscation under Section 111 of the Customs Act. It is further alleged that he also contravened Section 5 of the other Act by importing the said goods without any import licence or customs clearance permit for the same.
4. After certain evidence was recorded, a charge on these counts was framed on the same pattern which is already indicated to which the accused pleaded not guilty and claimed to be tried. Thereafter further evidence was recorded after charge and the trial concluded.
5. In effect while denying all the adverse allegations and contending that he has been falsely implicated the accused further canvassed that there is sort of some strained relationship between the Customs Department and the Wing of C.B.I. since the latter are empowered to investigate the cases even against the Customs Officers According to him, though he accepts his presence at the spot, still he was not concerned with the brief-case in question. He was posted on official duty for some confidential inquiry and also to keep a watch on the activities and the conduct of the Customs Officers and at that time on account of this rivalry and strained relationship the Customs Officers appear to have been found some brief-case abandoned and it was foisted on him under a false charge. He thus claims to be innocent.
6. The learned trial Magistrate discarded the prosecution evidence in the face of several infirmities which the catalogued in his judgment and accepted the defence of the accused as being probable. The composite reading of these observations resulted into the final order of acquittal being recorded by the learned trial Magistrate in favour of the accused on all counts, which was done on 7th of April 1981. The Customs Department not being satisfied the said order filed this appeal in this Court through the complainant - the Assistant Collector when leave was granted and appeal was admitted.
7. We have already indicated the structure of the prosecution case in brief which makes the repetition obviously avoidable. The evidence mainly consists of two witnesses, Samuel Raj P.W. 1 and Sherkhan Isak Khan P.W. 2. Sherkhan was on duty in the capacity as Preventive Officer of Customs. He has narrated the event that he had witnessed on the same lines. To re-capitulate he asserted that at about mid-night time he saw the accused and his companion holding two brief-cases and from the manner in which the accused was walking he felt a little apprehensive and suspicious and therefore expressed his suspicion to P.W. 1 Samuel Raj who was at that time working as Intelligence Officer of Customs and was posted on duty at the Air Port. Samuel Raj asserts that on being told by Sherkhan he accosted the accused and his companion asking for their identity when he was told that both of them were C.B.I. Officers. It was checked and verified on the basis of identity card of Deshpande. At that point of time the accused kept the brief case on the floor and when questioned he informed these officers that the bag did not belong to him nor was he concerned with the same. It is thereafter that the other officer Shri Gehani was called on the spot who also interrogated the accused but received the same reply. It is at that stage that panaches were called. Since no key was traced with the accused the bag was opened by the duplicate key. In between Sherkhan asserts and Samuel confirms that one Arab was brought to the spot on Sherkhan suspecting him to be concerned with the goods. However, that suspicion was proved to be unfounded because no key was found with him and even otherwise according to Shri Sherkhan his bonafides were established. In the search of brief-case 405 wrist watches were found which were seized under panchanama Exh. P-1. The accused was interrogated more than once. After getting the necessary sanction from the concerned officer the Assistant Collector Shri Patil filed the complaint for the said offences. This in short is the nature of evidence of these two witnesses.
8. It is true as contended by Shri Gangakhedkar, the learned Public Prosecutor for the State, that merely because the evidence consists of two Customs Officers that by itself should not be a ground to discard the same unless there are compelling reasons. We have examined the reasons assigned by the learned trial Magistrate and after going through the entire evidence in the context of the rival contentions canvassed on this forum we do not find any justifiable ground to disagree with the findings and most of the observations of the learned Magistrate and therefore we do not find any reason to upset the order of acquittal. Since the findings are being endorsed it may not be necessary to have a detailed probe and an elaborate discussion over again giving more or less the same reasons. We would, however, indicate only some of the landmarks.
9. It is an accepted position that no independent witness has been examined by the prosecution. It is not as if that there were no passengers or any other person nearabout the spot, yet the evidence hinges entirely on the testimony of the two Customs Officers. The panchas were brought subsequently not while the accused was carrying the bag but only after he was accosted and questioned and when the bag was being taken to the other room for the search. The panachas, therefore, did not see anything even then we find that a statement is incorporated in the panchanama suggesting that the Air Intelligence Officers had told the panchas that the accused was carrying the bag. Shri Gangakhedkar, the learned Public Prosecutor, accepts that this statement would not be admissible and in any way would not be conclusive in the strict sense though it was sought to be argued in the trial Court though it severs as corroboration to the substantive evidence of the two officers. The learned trial Magistrate has rightly dispelled that line of argument and that is not pressed into service on this forum by the prosecution. If the panchas were really available hardly within few minutes after the bag was alleged to have been kept on the floor there is no reason as to why earlier also the panchas could not be brought at least at the time when the accused was accosted and questioned, though we are aware that the officers could not have traced any person who could have seen the accused actually carrying the bag.
10. Shri Ved, the learned counsel for the respondent-accused, adopting the reasons, assigned by the learned trial Magistrate contended that it could not be an accidental slip on the part of the prosecution and the officers not to mention even inferentially the names of the Customs Officers who were concerned with that episode and according to him that position has been kept deliberately nebulous so that it can be moulded in any manner. It is pointed out in that behalf that the same deficiency appears first in the panchanama and significantly it is carried forwarded in the complaint as also in the sanction accorded by the concerned officer and it is also brought on record that the list of witnesses given by the prosecution contained the names of more than two Customs Officers.
11. It was agitated by the prosecution over again that the conduct displayed by the Customs Officers was obviously bona fide or otherwise they would not have allowed the companion Deshpande to go scot-free and they fairly conceded that nothing was found in his possession. It is in that behalf worth nothing that the brief-case that was in possession of Deshpande was never searched by the officers nor did they feel necessary to do so at that point of time and a very odd explanation was sought to be tendered to the effect that since in contrast that brief-case did not look so heavy they were convinced that it could not have contained any smuggled goods. The fallacy in that field has been expressly highlighted by the learned trial Magistrate when he observed that this cannot be a criterion that some smuggled goods like precious stones would not make the brief-case heavy and from a locked brief-case it was not permissible for these officers to jump to the conclusion that Deshpande could not have carried anything in the bag. It is also worth nothing that Deshpande's personal search was not taken nor any attempt was made to find out whether he possessed any brief-case in which the alleged articles were found. This inaction is not explained by the prosecution on any hypothesis and it is too much to accept that the two officers proceeded on certain assumption in favour of Deshpande and in the same vein the assumption was snapped against the accused.
12. In that behalf the evidence of Sherkhan P.W. 2 makes a little interesting reading as has been rightly commented upon by the learned trial Magistrate. According to the witness, the accused was carrying this Japanese make brief-case and the manner of his walk indicated that he was carrying some heavy articles. This impression he gathered as the accused was leaning forward much while walking. It is submitted by Shri Ved, the learned counsel, that the accused who is accepted to be quite a healthy person as he at that time would not have required such a bent in his gait so that it could be noticeable by any one even by a glimpse. This apart, another interesting statement is made by Sherkhan to the effect that the fingers of the hand which was holding the brief-case exhibited a typical symptom when the colour was blood-shot. This was introduced to support the theory that when a person carries the heavy article such a phenomenon always occurs. The learned trial Magistrate has rightly observed that in the first instance it was night time and the clear visibility and the intensity of illumination could not have been that bright to observe these minute details and that too from such a distance. Furthermore in the nature of things while holding the brief-case the fingers would have been turned inside so that the tips would not have been within the vision of any one and yet Sherkhan wanted the Court to believe that he could minutely see all these details. Significantly this theory was not introduced in examination-in-chief but came to be introduced for the first time in the cross-examination. The learned trial Magistrate has rightly commented on the same.
13. A query was posed in the trial Court as also on this forum on behalf of the prosecution that is it probable that a person who really owned that bag if he was other than the accused would have left on the floor un-attended. The learned trial Magistrate has dealt with this aspect little elaborately and concluded that if the accused was the carrier then as per the human conduct and the experience normally the article containing dubious material would not be handed directly and thus would not pass hands in that manner and in any event the carrier would not take it directly from the one concerned with the same. In that behalf it is further submitted and which is also accepted by the learned trial Magistrate that it is not uncommon to find that some articles are kept at a particular spot though those are not abandoned in that sense and the concerned person from some distance would obviously keep a watch on the same. The learned Magistrate, therefore, further observed that if the accused was to pick up that bag which was left over by the real owner then in that event it would have undergone the other process and in the absence of any marking from the Clearance Department it would have been impossible for the accused to pin point this very bag.
14. The learned Magistrate has commented on certain features over which P.W. 2 Sherkhan has changed his version from time to time. Since it is elaborately discussed by the learned Magistrate and which is found to be correct on the verification of the record it is not necessary to re-state the whole features over again.
15. There are however a couple of more formidable features which create a serious infirmity in the prosecution and which are highlighted by the learned trial Magistrate and on which count there is no proper explanation even on this forum on behalf of the prosecution. This is a typical case where it could not be said by the prosecution that there could not be and there was not in fact any corroboration to the evidence of the Customs Officers and if it was a case falling in that extreme category where no corroboration either direct or indirect could be imagined then perhaps the situation would have been different though in that event also it would have been necessary to closely scrutinise the evidence of the Customs Officers. The situation in the instant case is entirely different and it is reflected boldly in two features and which are admitted by the prosecution. The first is that no statement of these Customs Officers has been recorded by the Customs Department or by any one. There is absolutely no satisfactory explanation about this lapse because it cannot be overlooked that these are most material witnesses who almost claim to be eye witnesses to the incident. The second feature is that both of them assert that each had made a separate report to the superiors in the Department and according to the prosecution also those reports are in possession of the Department. In spite of this we find that those reports are not produced before the Court. A learned trial Magistrate has quite rightly commented on this deficiency which was the creation of the Department itself. It cannot be overlooked that in such matters where the Customs Officers claim to be eye witnesses and if there is possibility of having a check and counter check to their case then that should be done by the Department and should be unfolded before the Court. Consequently, therefore, in the nature of things and under the thrust of the situation it was extremely essential and not only desirable to record the statements of these two officers P.Ws. 1 and 2 because the complaint is filed by someone else who had no personal knowledge. In the instant case however there is yet another counter check which was available to the prosecution in the shape of the reports made by these two officers and yet we find that those reports are not produced before the Court and no plausible explanation is tendered in that behalf also. In a given case perhaps the absence of the statements could have been replaced and thereby condoned by relying on the reports immediately made which could be easily substituted for the first time, even then such an opportunity has been allowed to be snatched by the prosecution themselves. Obviously, therefore, the defence are clearly handicapped as there is no check and counter check to examine and test the credibility of the evidence given by these two witnesses which purpose would have been served if their statements were recorded or at least their reports were placed before the Court. All this apart, the situation makes it manifestly clear that here is a case where intrinsic corroboration is in existence if the prosecution case is accepted in the shape of the reports and that corroboration has not been placed before the Court and negatively speaking the existence of corroboration in the statement which could have been available has been lost to the prosecution by their own conduct. Shri Ved, the learned counsel, therefore, submits that it was not enough merely offering adverse comments but it would be proper to draw adverse inference against the prosecution in that behalf to the effect that if the reports would have been placed their contents have gone against the prosecution. Apart from the question of drawing the adverse inference, still the fact remains intact that there was corroboration available to the prosecution and there was possibility of getting further corroboration and yet that has not been done. Consequently, therefore, this is a typical case where the entire fate depends on the testimony of the two Customs Officers only and if the mode of testing the credibility of their evidence is snatched to the defence and the Court, then it would be, to put it on the minimum, extremely hazardous to accept their sole testimony. This position remains intact even if it is argued that the report whole-sale cannot be used as corroboration but essentially can be used for contradiction. This is more so, because the fundamental objection relates to the fact that here are the main witnesses in respect of whom there is no previous statement available so as to test the truthfulness of their version and if need be to contradict and confront them with any such previous statements of witnesses or otherwise the entire field is open for the witnesses to mould their case in whatever manner they like at the trial since they are assured that there is no scope for contradiction. Viewed from this angle, therefore, also strongly indicates that even de hors of the question about their reports, the bare minimum of non recording of their previous statements is a serious lapse and deficiency under the circumstances especially when that is the only evidence available to connect the accused.
16. The other disturbing feature relates to the panchanama. According to the prosecution panchanama ExhP-1 was drawn after the bag was opened with the duplicate key when it revealed that existence of 405 wrist watches of foreign make. Certain statements were incorporated in the panchanama some of which are already discussed. In a composite manner there is an endeavour to tag some of the statements in the panchanama even to the culpability of the accused vis-a-vis the bag in question. The panchanama is alleged to the drawn practically on the spot though in the adjoining room at the same time. One would, therefore, expect that the copy of the said panchanama would be given to the accused immediately on the spot. The obligation to do so is not denied by the prosecution. If a copy was supplied then there would have been a contemporaneous record regarding the acknowledgement of the copy by the accused. Realising this situation the witnesses came out with the story that they did offer the copy of the panchanama to the accused but he declined to accept the same. This is a very specious explanation which does not fit in with the circumstances as rightly commented by the learned trial Magistrate for obvious reasons that if such things really occurred then there could have been a contemporaneous record and one such record of giving endorsement in the panchanama itself made at the spot that the accused declined to accept the copy though tendered to him. Admittedly there is neither any receipt nor any endorsement nor any other document to bolster the case that the copy of panchanama was really offered to the accused but he declined. This, therefore, entails into drawing an inference against the prosecution on the harmonious platform that the copy was not offered to the accused at that time. The implications of such a lapse and deficiency need not be emphasised because it is obvious as rightly relied upon by Shri Ved, the learned counsel, and equally rightly accepted by the learned trial Magistrate. This gives a serious jot to the prosecution case about the events that occurred on the spot which are reflected in the panchanama, more so, because the accused has categorically denied their correctness and validity.
17. It is also rightly observed by the learned trial Magistrate that the accused and his companion who are experienced C.B.I. Officers would not have behaved in the manner in which they are alleged to have done by the prosecution. Thus for instance they would not have practically paraded carrying the contraband articles in front of several persons and that too in such a manner that it would raise obvious suspicion or at least curiosity against them. Further if the bag was really heavy loaded with such articles then it was not possible for the accused to practically move the bag so freely. What is of more importance is that if the accused was really carrying the bag with the consciousness that it was containing contraband articles and the experience which was to the credit of the accused, his conduct would have been otherwise in that instead of loitering on the premises and trying to make his exit as early as possible, he would not have whiled away the time being very much on the spot and thereas possible, he would not have whiled away the time being very much on the spot and thereby very much in the vulnerable situation and under the dangerous field because he was carrying the contraband articles. On the contrary the evidence makes it clear that no anxiety indicated by the accused to go out of the premises but he was practically loitering nearabout carrying the bag with him.
18. Shri Ved, the learned counsel, also rightly relied that at least three Customs Officer who are alleged to have come on the sport immediately after the apprehension of the accused have not been examined. One of them included Shri Gehani who is alleged to have questioned the accused when the accused disowned any knowledge about the bag. It is an accepted position that neither Shri Gehani nor other officers are examined. A further link by way of corroboration is thereby snatched because these officers and especially Shri Gehani would have been in a position to disclose as to what sort of disclosure was made by P.W. 1 Samuel Raj and P.W. 2 Sherkhan. This argument observed by the learned counsel has much substance and which is rightly commented upon by the learned trial Magistrate.
19. It is also worth noting that the first statement of the accused was recorded on the spot and admittedly that is an absolutely ex-culpatory statement. Even thereafter his further statements were recorded and some in the adjudication proceeding and significantly each of those statements is ex-culpatory. This to some extent at least is a pointer in favour the accused and against the prosecution.
20. One pointer has also been relied upon by the learned trial Magistrate to the effect that the defence theory gets some internal support by the fact that when these officers C.B.I. were questioned by the Customs Officers and when they disclosed their identity and purpose of their mission they were asked whether they had obtained permission to be on the premises and for that purpose the companion of the accused Shri Deshpande went ahead and got the permission from the concerned officer. This is boldly reflected in the evidence and thus it affords support to a feature which is integrally connected with the defence of the accused.
21. As indicated earlier the learned Magistrate has time and again observed that in minimum there may not be harmony between the officers of these two Wings namely the Customs and C.B.I. and there might be somewhere in the nook corner of the mind a veiled feeling of animosity or grudge or even element of ego because of the jurisdiction vesting in the C.B.I. Officers to investigate even the cases against the Customs Officers and to watch their activities and this therefore adds to the necessarily of insisting on some corroboration to the evidence of such Customs Officers as even Sub-consciousness of their mind may be susceptible to receive some evidence by construing against the accused. The learned Magistrate further observed that it is not unlikely that there would be some resentment or some sense caution in the Customs Officers' mind when C.B.I. Officers are watching their movements. It is however not necessary to go into the details of this aspect though the same would require adequate consideration as the relevance of this feature cannot be lightly brushed aside and it would create its own impact in the peculiar facts and circumstances of the case which would be adverse to the prosecution essentially because of such an un-built feeling likely to be generated in the mind of these two prosecution witnesses.
22. As observed at the threshold the learned Magistrate has in his well reasoned and all considered judgment has catalogued several items of infirmities and since we are in general agreement of the same each and every infirmity need not be discussed over again and we have only embarked on some salient features and landmarks which in our opinion is sufficient for the purpose of this proceeding.
23. It is well settled that while dealing with an appeal against the acquittal certain guidelines and principles cannot be lightly brushed aside. The foremost is that there should be an endeavour to find out whether the view expressed by the trial Court is possible and probable view or not. If the answer is in the affirmative then the chapter should be closed because even assuming that the Appellate Court might have taken a different view on the facts that the one adopted by the learned Magistrate, it is not permissible to do so because it is not permissible on the Appellate forum to choose a particular view out of the two equally plausible views. In our opinion not only the view adopted by the learned Magistrate is possible and probable but even on the fresh assessment of the entire evidence we fully satisfied that that was the most reasonable and justifiable view that would have been harmoniously reached. Therefore, apart from upholding the validly of the view expressed by the learned Magistrate even on the re-assessment we reach the same conclusion as being the most rational view under the circumstances. If that be so, for obvious reasons the order of acquittal cannot be up-set. As stated at the threshold the incident occurred in the year 1978 for which the complaint was lodged in February 1980 which ultimately concluded before the trial Court in April 1981 against which this appeal was preferred by the complainant on this forum in the year 1981 and it is being disposed of in the year 1988 and as indicated in between the accused who had put in nearly 40 years service has retired long back in the year 1980 itself.
24. In this view of the matter there is no substance in the appeal.
25. Appeal dismissed.
26. The order of acquittal recorded by the learned trail Magistrate in favour of the respondent-accused is confirmed.