Bangalore District Court
The Deputy Commissioner Of Customs ... vs Stanley Pradeep Devanesan on 19 March, 2016
1 CC.NO.101/2012
BEFORE THE SPECIAL COURT FOR ECONOMIC OFFENCES: AT
BANGALORE.
Dated this the 19th day of March 2016.
Present: Smt.PUSHPAVATHI V., B.A.L., LL.B.,
Presiding Officer, Special Court
for Economic Offences, Bangalore.
CC.No.101-2012.
Complainant: The Deputy Commissioner of Customs (Legal),
Office of the Commissioner of Customs,
Central Revenue Buildings, Queens Road,
Bangalore.
. vs .
Accused: Stanley Pradeep Devanesan, S/o.Devanesam,
30 Years, R/a.No.136, Opp:North Woods,
Cauvery Nagar, Vadarapalya, Hennur Bande,
Bangalore.
JUDGEMENT
1. This is the complaint filed u/s.200 of Cr.P.C., by the Deputy Commissioner of Customs (Legal), Office of the Commissioner of Customs, Bangalore against accused with a prayer to punish him for the offence punishable u/s.135(1)(a) & 135(1)(b) of the Customs Act, 1962.
2. The brief facts of the complainant's case is that the complainant is the Deputy Commissioner of Customs (Legal), at the time of investigation, he was working in the office of the Commissioner of Customs, Bangalore, he is a public servant, 1 2 CC.NO.101/2012 he has filed this complaint on his official capacity, he is authorized to file this complaint by the Commissioner of Customs, Bangalore-1, as per the sanction order dated:08.08.2012 to prosecute the accused.
3. On 10.03.2010 at about 19.40 hours when the team of Officers of the Headquarters Preventive Unit, Customs, Bangalore, (HPU), on credible information, visited the Courier Office viz., Sky Speed Express, situated at D.No.1 & 2, Kaliamman Koil Street, Next to Bata Show Room, Bazaar Street, Ulsoor, Bangalore, accused who is resident of Bangalore & holder of Indian Passport bearing No.E3226571 was attempting to export about 3.4 kgs of Ketamine Hydrochloride which was prohibited to export by concealing the same in cream coloured and grey coloured Executive bags kept in cardboard box and thereby committed an offence punishable u/s.135(1)(a) & 135(1)(b) of Customs Act, 1962 & hence, this complaint.
4. On this complaint, the case has been registered, cognizance taken, accused secured, enlarged on bail, copies of complaint and other documents were furnished to him. 2 3 CC.NO.101/2012 Thereafter, the charge has been framed against the accused where he has pleaded not guilty and claimed to be tried. Hence, the mater was posted for complainant evidence where the complainant has examined as many as 7 witnesses as P.w.1 to 7 in support of their case and got marked Ex.p.1 to 10 & Mos.1 to 4. They have been cross-examined by the learned counsel for accused. On the completion of complainant evidence, the statement of accused u/s.313 of Cr.P.C., has been recorded wherein the accused has denied all the incriminatory evidence readover to him and submitted that he is not involved in exporting the above mentioned product, any allegations against him are false, he has got no evidence on his side & did not choose to lead any defence evidence. Hence, the matter was posted for arguments.
5. Thereafter, heard the arguments. Perused the entire record, the points that arise for my consideration are :
Point No.1: Whether the complainant proves beyond all reasonable doubt that on 10.03.2010 at about 19.40 hours when the team of Officers of the Headquarters Preventive Unit, Customs, Bangalore, (HPU), visited the Courier Office viz., Sky Speed Express, on credible information, situated at D.No.1 & 2, Kaliamman Koil Street, Next to Bata Show Room, Bazaar Street, Ulsoor, Bangalore, the accused who is resident of Bangalore & holder of Indian Passport bearing No.E3226571 found attempting to export about 3.4kgs., of Ketamine Hydrochloride which was prohibited to export by concealing the same in Cream coloured and Grey coloured Executive bags kept in cardboard box and thereby committed an offence punishable u/s.135(1)(a) & 135(1)(b) of Customs Act, 1962.?3 4 CC.NO.101/2012
Point No.2: What order.?
6. My findings on the above said points are as under:
Point No.1: Partly in the Affirmative, Point No.2: As per the Final orders for the following:
REASONS
7. Point No.1: P.w.1 Sri.B.S.Manjunath, Superintendent of Central Excise & Customs, Mysore during his chief examination has stated that during June-2009 to June-2010 he was working as Head Quarters Preventative, Superintendent of Customs, Head Quarters, Bangalore, on gathering of intelligence about accused-Stanley Pradeep Devanesan and one Mr.Shiva Subbaiah are trying to smuggle out Ketamine Hydrochloride on 10.12.2009 by going to Foreign Countries. So they nabbed them on International Airport, Devanahalli on the same day, both of them were carrying Ketamine Hydrochloride in their executive bags by concealing it, the quantity of Ketamine Hydrochloride in both bags was 7.8 Kgs., they have been arrested and produced before the court, the court sent them to Judicial Custody, later released on bail. Thereafter, they got one more information that the accused-Stanley Pradeep 4 5 CC.NO.101/2012 Devanesan would send Ketamine Hydrochloride through Courier mode through Sky Speed Express, Ulsoor, Bangalore.
8. P.w.1 has further stated that on 10.3.2010 himself and his colleagues had been to above said Courier Office at 19 hours., they met Proprietor Mr.Goutham, they informed him about one well built person would come for booking the parcel, they asked for his assistance in investigation, he co-operated and allowed to wait in the office, they waited upto 19.40 hours, the accused came with seven similar executive Diesel brand bags, proprietor of the Courier Office Mr.Goutham weighed the bags which came to 14 kgs., he asked the accused to pay the charges of Rs.6300/- it was given by accused-Pradeep to Mr.Goutham, invoice is drawn in the name of Harmon Traders Pvt., Ltd., Koramangala, Bangalore. At that junction himself & his colleagues asked Mr.Goutham & accused to open the bags, bags were opened, there were 3.4 kgs of white crystalline powder suspected to be Ketamine Hydrochloride in all the bags it was concealed. They informed accused-Pradeep that it is a restricted item as per Foreign Trade Policy of India which requires no objection certificate from Narcotics Commission, 5 6 CC.NO.101/2012 they asked for such certificate, he did not produce, he was trying to smuggle out Ketamine Hydrochloride of 3.4 Kgs without any required certificate, so they seized the powder along with 7 executive Diesel brand bags.
9. P.w.1 has further stated that they drawn 3 represented samples out of seized powder, packed separately in three bundle by putting it in plastic cover. Thereafter, covering the same in Kora Cloth & seized it in wax and Custom Office seal, they have sealed Rs.6,300/- which was given by accused- Pradeep to Mr.Goutham for booking, the mahazar is also drawn in presence of two panchas i.e., Mr.C.Harish & Mr.Prasad, the accused was arrested and sent for Judicial Custody, himself, accused, Mr.Goutham & two panchas signed to mahazar, the mahazar is at Ex.p.1, his signature is at Ex.p.1(a), the accused signature is at Ex.p.1(b), Mr.Goutham's signature is at Ex.p.1(c), the signatures of panchas i.e., Mr.Harish & Mr.Prasad are at Ex.p.1(d) & (e).
10. He has also stated that the invoice which is also seized at the time of mahazar which at Ex.p.2, his signature is at Ex.p.2(a), the accused signature is at Ex.p.2(b), Mr.Goutham's 6 7 CC.NO.101/2012 signature is at Ex.p.2(c), the signatures of panchas i.e., Mr.Harish & Mr.Prasad are at Ex.p.2(d) & (e). It is also stated that at the time of booking courier, the receipt was given to accused, it was also seized under a mahazar which is at Ex.p.3, his signature is at Ex.p.3(a), the accused signature is at Ex.p.3(b), Mr.Goutham's signature is at Ex.p.3(c), the signatures of panchas i.e., Mr.Harish & Mr.Prasad are at Ex.p.3(d) & (e).
11. He has further stated that as a part of investigation, he has recorded the statement of accused & Mr.Goutham at the time of mahazar as per Ex.p.4 & 5 respectively, his signature is at Ex.p.4(a) & 5(a) respectively, the signatures of accused & Mr.Goutham are at Ex.p.4(b) & 5(b) respectively.
12. He has further stated that on 1.4.2010 he has recorded the statement of one Mr.Shiva Subbaiah of Chennai, his statement is at Ex.p.6, his signature is at Ex.p.6(a), the signature of Mr.Shiva Subbaiah is at Ex.p.6(b).
13. P.w.1 has further stated that they sent two samples to Customs-House Laboratory, Customs House, Chennai for examination. On 12.5.2010 they received report from Joint 7 8 CC.NO.101/2012 Director, Customs House, Laboratory, Customs House, Chennai that the sample sent is a Ketamine Hydrochloride, an organic compound, the report is at Ex.p.7. Thereafter, the adjudication proceedings was conducted, it was imposed fine of Rs.31 lakhs, thereafter, they applied for sanction to prosecute the accused, they received sanction order on 8.8.2012, the adjudication order is at Ex.p.8, the sanction order is at Ex.p.9. Thereafter, the file is delegated to Dy. Commissioner (Legal) Customs, he has filed the complaint u/s.200 of Cr.P.C., which is at Ex.p.10.
14. During further chief examination on 9.1.2015, this witness has identified Ketamine Hydrochloride of 3.370 kgs., as seized which was wax sealed with Customs, Bangalore, Ashok Emblem in Kora cloth as Mo.1, he has identified the signatures of two witnesses i.e., Harish & Prasad as Mo.1(a) & (b) respectively, the signature of accused as Mo.1(c), seized 7 empty diesel brand executive bags, Indian currency of Rs.6,300/-, invoice of Harmon Traders, Koramangala, Bangalore, Air way bill bearing No.0001-12115229 of M/s.Sky Net World Wide Express, Courier Company, put in a carton box 8 9 CC.NO.101/2012 and sealed as Mo.2, the signatures of Harish & Prasad as Mo.2(a) & (b), the signature of accused as Mo.2(c). After Mo.2 is opened the properties i.e., the cut pieces of diesel brand 7 bags is identified the witness as Mo.3, the remained sample received from Customs House Laboratory, Chennai as Mo.4, the signatures of Harish & Prasad as Mo.4(a) & 4(b), the signature of accused as Mo.4(c).
15. He has further stated that these properties were kept in Mo.2, the Indian Currency of Rs.6,300/- is not found in Mo.2, Mo.4 was sent in a same cover after drawn sample for analysis, while drawing sample, the sample were kept in cover and was wax sealed, thereafter, obtained the signature of accused and witnesses.
16. In further chief examination dated:3.3.2015, he has further stated that on the last date of hearing due to lapse of time, due to loss of memory, he has deposed that the amount of Rs.6,300/- seized is kept in carton box. But actually, it was not kept in carton box, now it is misplaced, they are searching, soon after trace out they will produce the same, they had kept 9 10 CC.NO.101/2012 said amount in a brown cover after that they had sealed the with wax and had taken signature of accused and witnesses.
17. During the cross examination, this witness denied the suggestions that he do not know the facts and circumstances of the case, he has not produced the notification showing Ketamine Hydrochloride is a restricted goods to be exported and requires permission from the Narcotic Commissioner.
18. In the further cross examination on 7.4.2015, this witness has admitted that he seized properties in this case, the seizure took place in the office of Sky Speed Express, Bazaar Street, Ulsoor, he did not verify before seizure whether the place where the seizure took place is customs notified area, in respect of customs notified area, no shipping bill was prepared by them at the time of documents presented for export & apprehended accused, before export, shipping bill should be prepared, the shipping bill is to be presented before proper officer seating in the office situated at customs notified area, the Sky Speed Express is not customs notified area, there is no indications or entries or seal showing Mo.4 is received from Customs House Laboratory (CHL), Chennai, when the 10 11 CC.NO.101/2012 properties seized, he new that it is the Ketamine Hydrochloride, in the report Ex.p.7 it is mentioned that purity of the sample could not be determined for want of certified reference standard and facilities.
19. But he has clarified that there is no necessary to verify whether the place where the seizure took place is customs notified area, he has not verified as to Sky Speed Express is registered under Couriers Regulations framed under the Customs Act, he did not verify whether Sky Speed Express is the authorized for the purpose of export. He has clarified that preparing of shipping bill was not necessary, as it will be prepared at Port of Export. He has further stated that he did not found any shipping bill, Mr.Goutham, the owner of Sky Speed Express has put his signature to mahazar, he did not ask Mr.Goutham whether shipping bill is prepared, he called the witnesses who were going at the entrance of the office. He has further verified that he need not produce notification showing Ketamine Hydrochloride is Narcotic Drug, he need not to produce any notification restricting any person in India possessing Ketamine Hydrochloride, he has not produced any 11 12 CC.NO.101/2012 notification showing Ketamine Hydrochloride is restricted or banned item, he has not produced the letter through which samples are sent to CHL. There is no mention as to manner/ procedure which is adopted to test the sample in the report.
20. P.w.2 Sri.S.Surendra Kumar, Supt., of Customs, Bangalore has stated that from June-2010 to March-2011 he was working as Superintendent of Customs, Head Quarters, Preventive, Customs, Bangalore, during that period he received the file from his Predecessor Mr.B.H.Manjunath & continued investigation, he had received property along with file, he recorded further statement of accused since there was contradiction in the statement of accused & Shiva Subbaiah as to involvement of Shiva Subbaiah in the offence, the accused had reiterated the earlier statement, he handed over the file to his successor, the statement is at Ex.p.7.
21. During the cross examination, he has admitted that to export through Courier, one should have Customs House Agent Licence, by the time, he received file, process of seizure, recording statements of some witnesses were completed, on transfer of previous officer, he took charge of the file, Ex.p.3 12 13 CC.NO.101/2012 was there in the file, it is issued by Sky Net World Wide Express, he did not enquire whether Sky Net Express had CHA Licence or Licence to export through Courier, except recording statement, he has done nothing in this case.
22. He has also stated that the file was not revealing that the Sky Speed Express was having CHA Licence, he did not enquire as to whether the Sky Speed Express was having CHA Licence, the file was also not revealing that the Sky Speed Express was having Courier Licence to export, he did not enquire as to whether the Sky Speed Express was having courier licence to export, he did not enquire as to how the Sky Net World Wide Express authorized Sky Speed Express to export through courier, he did not enquire whether the place where the Sky Speed Express is situated is Customs notified area.
23. P.w.3 Sri.N.Goutham, Proprietor, Sky Speed Express, Bangalore in his chief examination has stated that during 2010 he was running a Sky Speed Express-Courier Business at No.1, Kaliamman Koil Street, Ulsoor, Bazaar Street, Bangalore, he was the proprietor. At about 4.00 clock he received a 13 14 CC.NO.101/2012 telephone call from Mr.Santhosh asking rates to send a courier to U.K., he told rates, he told that he will come to send parcels. Thereafter, Four Custom Officers came to their office and told they have information that somebody is sending drugs through courier, they said they will wait to notice that person.
24. P.w.3 has further stated that at about 7.30 p.m., one Mr.Santhosh came to their office to send parcel containing 7 executive bags in a one carton box, he weighed the box, it was around 14 Kgs., he asked the value of the goods, Mr.Santhosh said it is Rs.7000/-, he has also produced one company invoice in this regard, so, he booked the shipment through Airway bill of World Wide Express. At that time Customs Officers entered their office and they checked by cutting and opening the lining of one executive bag, they noticed some crystalline white powder, they subjected the same with test kit, he told him that it is a Ketamine Hydrochloride, thereafter, they cut & opened all the executive bags, found same powder, they asked Mr.Santhosh to furnish certificate to transport the said Ketamine Hydrochloride, he did not produce, he gave one invoice in the name of Harmone Traders, Koramangala, the officers said it is 14 15 CC.NO.101/2012 restricted item, they cross examined Mr.Santhosh, he said his real name is Mr.Stanely Pradeep, the powder which was in the executive bags was weighed by Customs Officers in his presence, it weighed about 3.4Kgs., they took 3 samples and seized remaining powder, Rs.6300/- cash which was given by accused-Stanely Pradeep to him towards booking charge, invoices of Hormone Traders, Koramangala produced by accused-Stanely Pradeep, 7 executive bags, carton box, Airway Bill copy, one knife and other personal belongings of accused which he do not remember. The samples drawn were put in polythene cover and thereafter brown cover. The remaining powder was put in small packets and all were covered in white kora cloth, they drawn mahazar in this regard, he put his signature to mahazar on carton box, on samples and other material seized. Thereafter, they took accused with them, he can identify accused, he has identified the accused as person who came for booking for export. He has also identified Ex.p.1 as mahazar, Ex.p.2 as invoice, Ex.p.3 as airway bill & Ex.p.5 as statement, Ex.p.1©, Ex.p.2(a), Ex.p.3(b) & Ex.p.5(a) as his signatures.
15 16 CC.NO.101/2012
25. In further chief examination dated:23.06.2015, he has identified Mo.4 as the White powder sampled & put in brown cover by the Customs Officers, Mo.3 as Cut pieces of diesel bag, Mo.1 as stitched kora cloth cover in which the white powder was packed, Mo.4(d) as his signature. He has further stated that they have also seized Rs.6,300/- and put it in a cover and sealed, he can identify the same if it is shown to him.
26. During the cross examination of P.w.3, he has stated that they do not have Customs House Agent licence & courier licence to export, they have agreement with Sky Net World Wide Express, he has not furnished copy of which either to Customs Officer or to court, Ex.p.3 is issued by Sky Net Express not by them, he do not know whether the place where their shop is situated is customs notified area, his signature is not there on Mo.1, Ex.p.1 is typed by him as dictated by Customs Officer, he has admitted that the Customs Officers had brought 2 panchas to their shop.
27. P.w.4 Sri.Srinivas Prasad K.V., Supt. Of Customs, Bangalore has stated in his evidence that from 2010 to 2011 he was working as Inspector, HPU, Bangalore Customs 16 17 CC.NO.101/2012 Commissionarate, on 10.3.2010 they gathered intelligence that one person is trying to export Ketamine Hydrochloride without valid licence, their team headed by Mr.B.S.Manjunath went to M/s.Sky Speed Courier, near Kalliamma Koil Street, Ulsoor, Bangalore, their team head took two independent witnesses, he directed himself and other colleague to wait outside, himself and two independent witnesses went inside M/s.Sky Speed Courier Office.
28. He has further stated that at about 8 p.m., their team head called them inside M/s.Sky Speed Courier Office, they went, he shown them carton box having 7 executive bags & accused, he said that he has got reasonable belief that the accused was exporting the said bags, on his instruction, they opened the bags, found empty, one of their colleague pierced one bag where they found crystallized white powder, on prima facie check, they identified it as Ketamine Hydrochloride, then they cut opened all the bags and found same powder in small pouches concealed in between the rexine & cardboard used for manufacture of the bags.
17 18 CC.NO.101/2012
29. P.w.4 has further stated that their team head asked accused for licence, he said no. As per the instructions, they segregated the whole Ketamine Hydrochloride in a one plastic cover & packed with kora cloth, all the cut rexine bags were bundled and tied, they found Rs.6,300/- cash, one mobile, one wallet with accused, out of this, their head seized Ketamine Hydrochloride, rexine bags and cash, before seizing, they drawn 3 samples of 10 gms of Ketamine Hydrochloride each, sealed in 3 brown colour cover with wax, took signatures of witnesses & independent witnesses & accused. In this regard mahazar was drawn, the matter of mahazar was typed by him in a computer which was available in the Sky Speed Courier Office as per the instructions of team head, he put his signature as per Ex.p.1(f), he also identified Mo.1 as Ketamine Hydrochloride packed in kora cloth, Mo.2 is carton box, Mo.3 as the cut pieces of rexine cloths & Mo.4 as one portion of sample drawn.
30. During the cross examination of P.w.4, this witness has admitted that the entire search took place at Ulsoor, the area where the office of Sky Speed Express was situated was not 18 19 CC.NO.101/2012 notified as Customs Area, the address mentioned in mahazar shown that they are not local witnesses from Ulsoor. As on the date of seizure, the ketamine Hydrochloride was not a narcotic drug, the Sky Speed Express was not registered under authorized courier regulations, there was no paper presented before the proper officer for export, he has also acted as per instructions of his Senior Officer. He has further stated that the mahazar has been dictated by the witnesses, they dictated in Kannada and he typed in English, there is no note that the witnesses have dictated contents of mahazar in Kannada in mahazar. Mr.Manjunath called the witnesses, he do not know from where the witnesses called, he did not find any shipping bill during search.
31. P.w.5 Sri.Harish C., office boy, Bangalore has stated in his evidence that he is working as House Keeping in Private Sector, during March-2010, when himself & Mr.Prasad were working in their office Mathru Enterprises near Indian Express, Mr.B.S.Manjunath, Superintendent of Customs called them to be witnesses to the Investigation, they went along with him to Sky Speed Courier Office near Kalliamman Temple, there were 19 20 CC.NO.101/2012 two officers with Mr.Manjunath, Mr.Manjunath said other two officers to wait outside and took himself & Mr.Prasad inside the Office, they found accused trying to export something in carton box, Mr.Manjunath called his colleagues inside, on his instructions officer opened the carton box, they found 7 executive rexine bags, there was nothing in the bags, one of the officer pierced one bag, they found white powder, the officers said it is a ketamine, on the instructions of the officers cut opened all the bags, they found same powder in small pouches concealed in between the rexine & cardboard used for manufacture of the bags.
32. P.w.5 has further stated that Mr.Manjunath asked accused for licence, he said no, as per the instructions, the officer segregated the whole Ketamine Hydrochloride in a one plastic cover and packed with kora cloth, all the cut rexine bags were bundled and tied, they found Rs.6000/- and odd cash, one mobile, one wallet with accused, out of this Mr.Manjunath seized Ketamine, rexine bags & cash. Before seizing Manjunath drawn 3 samples of 10 gms., of Ketamine Hydrochloride each, sealed in 3 brown colour covers with wax, 20 21 CC.NO.101/2012 took his and Mr.Prasad's signatures. In this regard mahazar was drawn, the matter of mahazar was typed by another officer who accompanied them in a computer which was available in the Sky Speed Courier Office as per the instructions of Mr.Manjunath, he put his signature to mahazar, his signatures are at Ex.p.1(d), 2(d) & 3(d), the carton box in which 7 bags were kept is Mo.2, the Ketamine Hydrochloride packed in kora cloth is Mo.1, the cut pieces of rexine cloths is Mo.3 & one portion of sample drawn is Mo.4, his signatures are at Mo.1(a) & 4(a).
33. During the cross examination of P.w.5, he has stated that his Education Qualification is 9th standard, he was working in Mathru Enterprises as office boy during 2010, Mathru Enterprises was dealing with the business of supply of man power, now he is driver, he did not dictate the contents of mahazar, but they made known the contents of mahazar in Kannada Language to him before putting his signature, he has written in the mahazar that the contents have been made known to him before putting his signature, mahazar Ex.p.1 is typed in courier office, Mathru Enterprises is situated at Peenya 21 22 CC.NO.101/2012 during 2010, their Head Office is situated at Queen's Road, they were standing there, Mr.Manjunath called him, he knew Mr.Manjunath earlier, he had seen him in the Custom's Office, they were supplying man power to Customs Office, he was posted to customs office to work, he has worked in custom office for one year during the search, he has not worked around Ulsoor during 2010.
34. He has admitted that the mahazar is dictated by Mr.Manjunath, as per the instructions of Manjunath, he put his signature to Mo's., mahazar and other papers, he heard the powder which was seized is ketamine from Mr.Manjunath, he has forgotten the question put by Mr.Manjunath to him, Mr.Manjunath tested the powder, he used a kit box to test, he himself has brought the kit from his office, he do not know the name of test conducted, he used a spoon and shaked the powder, this is not mentioned in mahazar.
35. P.w.6 Sri.Prasad, Office Boy, Bangalore has stated that he was working as House Keeping in Private Sector, on 10.3.2010, when himself & Mr.Harish were working in their office Mathru Enterprises near Indian Express, Mr.B.S.Manjunath, 22 23 CC.NO.101/2012 Superintendent of Customs called them to be witnesses to the Investigation, they went along with him to Sky Speed Courier Office near Kalliamman Temple, there were two officers with Mr.Manjunath. Mr.Manjunath said other two officers to wait outside and took himself & Mr.Harish inside the Office, they found accused trying to export something in carton box, Mr.Manjunath called his colleagues inside, on his instructions officer opened the carton box, they found 7 executive rexine bags, there was nothing in the bags, one of the officer pierced one bag, they found white powder, the officers said it is a ketamine, on the instructions of the officers cut opened all the bags, they found same powder in small pouches concealed in between the rexine & cardboard used for manufacture of the bags.
36. P.w.6 has further stated that Mr.Manjunath asked accused for licence, he said no, as per the instructions, the officer segregated the whole Ketamine Hydrochloride in a one plastic cover and packed with kora cloth, all the cut rexine bags were bundled and tied, they found Rs.6000/- and odd cash, one mobile, one wallet with accused, out of this Mr.Manjunath 23 24 CC.NO.101/2012 seized Ketamine, rexine bags & cash. Before seizing Manjunath drawn 3 samples of 10 gms., of Ketamine Hydrochloride each, sealed in 3 brown colour covers with wax, took his and Mr.Harish's signatures.
37. P.w.6 has further stated that In this regard mahazar was drawn, the matter of mahazar was typed by another officer who accompanied them in a computer which was available in the Sky Speed Courier Office as per the instructions of Mr.Manjunath, he put his signature to mahazar, his signatures are at Ex.p.1(e), 2(e) & 3(e), the carton box in which 7 bags were kept is Mo.2, the Ketamine Hydrochloride packed in kora cloth is Mo.1, the cut pieces of rexine cloths is Mo.3 & one portion of sample drawn is Mo.4, he identified his signatures as Mo.1(b) & 4(b).
38. During the cross-examination of P.w.6, he has admitted that himself & Mr.Harish were working in same office during 2010, he worked in Customs Office during search. Mr.Manjunath dictated the contents of panchanama, Mr.Srinvias Prasad typed it, he did not dictate contents of mahazar, he did not say to type the contents of mahazar in 24 25 CC.NO.101/2012 Kannada, he was working in Customs Office when Mr.Manjunath called him to search, he was working Customs office from 2004 to 2013, he know all the Customs Officer almost, the contents of mahazar was readover and explained in Kannada, but this is not endorsed in mahazar, he say that the contents of mahazar is said by them in Kannada and it was typed in English by Mr.Srinivas Prasad.
39. P.w.7 Smt.M.Thanigaikarasi Asst. Chemical Examiner, Customs House, Chennai in her chief examination has stated in her evidence that during 1997 she was working as Chemical Assistant, Grade-II, Customs House, Chennai, on 25.3.2010 their Joint Director received one sample which was sealed in brown cover from Mr.K.V.Srinivas Prasad, Inspector of Customs, Bangalore, same was allotted to her on the same day, it was intact, she registered it in Lab.No.148/DSM, dated:25.3.2010. On opening she found white crystalline powder in a plastic pouch, weighed with pouch, it was around 16.25 gms., thereafter subjected to test of TLC, under UV light, melting point and chloride test, she found the sample was Ketamine Hydrochloride, she gave a report accordingly as per 25 26 CC.NO.101/2012 Ex.p.7, in the report, their Joint Director has put his signature as per Ex.p.7(b). She returned the sample by sealing the same with same cover with lac seal with lab number, she identified Mo.4 as sample returned & the lac seal of their lab as Mo.4(d). She has further stated that the Ketamine Hydrochloride is a salt form of Ketamine, the Ketamine Hydrochloride will be prepared by ketamine, it can also be turned into Ketamine by chemical process, the affect of Ketamine and Ketamine Hydrochloride are one and the same, the 11.54 milligrams of Ketamine Hydrochloride is equivalent of 10 milligrams of ketamine, the ketamine and Ketamine Hydrochloride will be used in medical field for anesthesia, the over dosage of this and addiction to this will kill the human and animals.
40. During the cross examination of P.w.7, she has admitted that herself & Laboratory are part of Customs Department, she personally conducted test, they maintain observation note book to record the procedure and manner of the test conducted. The observation note book or extract of which is not enclosed to Ex.p.7, in Ex.p.7 they have noted that purity of the sample could not be determined for want of certified reference standard 26 27 CC.NO.101/2012 and facilities, there is certified reference in both ketamine & Ketamine Hydrochloride, such certified reference standard was not used to test the sample in question, if certified reference standard was available they could have get better result, Ex.p.7 is written by Mr.S.Kameswar Rao, she has merely signed to Ex.p.7, she has tested the sample with the existing tested characters, as it was matching with existing characters, she has reported that the sample is Ketamine Hydrochloride, on she sent observation note, Mr.Kameswar Rao prepared Ex.p.7, when the sample came to their office, she did not receive the sample, it is Mr.Kameswar Rao who received sample. She has further stated that she is qualified with M.Sc., (Chemistry), she do not know whether Ketamine Hydrochloride & Ketamine have got different chemical properties, she do not know what is the chemical name of Ketamine & Ketamine Hydrochloride. In the observation notebook, she has made observation as to found seal intact and opened it, she has conducted required tests, the observation notebook is part and parcel of office record.
41. The learned counsel for the accused has filed written argument that the prosecution is required to establish each one 27 28 CC.NO.101/2012 of the ingredients of the charge framed and consequently has not been proved, hence the accused is liable to be acquitted of the charges framed.
42. The prosecution failed to prove the ingredients of the charge as set out by this Court by order dated:2.12.2014 the deposition of the witnesses do not establish the ingredients of the charge, hence the accused is liable to be acquitted.
43. In support of his argument, the accused has relied upon the case laws reported in :
1) Para No.15 of the Judgement reported in Air 1990 SC 1459 in a case between Vijaye Singh & other Vs. State of UP., which reads as follows:-
"In respect of Criminal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. This flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt.
Para No.33 which reads as follows;- The general burden of establishing the guilt of accused is always on the prosecution and it never shifts. Even in respect of the cases covered by S.105 the prosecution is not absolved of its duty of discharging the burden. The accused may raise a plea of exception either by pleading the same specifically or by relying on the probabilities and circumstances obtaining the case. He may adduce the evidence in support of his plea directly or rely on the prosecution case itself or, as stated above, he can indirectly introduce such circumstances by way of cross-examination and also rely on the probabilities and the other circumstances. Then the initial presumption against the accused regarding the non-existence of the circumstances in favour of his plea gets displaced and on an examination of the material if a reasonable doubt arises the benefit of it should go to the accused. The accused can also 28 29 CC.NO.101/2012 discharge the burden u/s.105 by preponderance of probabilities in favour of his plea."
2) 1980 SCC (Cri) 546 in a case between Abdula Mohammad Paragarkar Vs. State, wherein it is held as follows:
"Evidence Act, 1872 - Section.3 -"proved"-Suspicion, however strong cannot be a substitute for proof.
Evidence Act, 1872 -Section.102 - Onus of proof of existence of every ingredient of charge always rests on the prosecution and never shifts on the accused.
Para No.19: Now this is hardly a proper approach to this requirements of proof in relation to a criminal charge. The onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts. It was incumbent therefore on the state to bring out, beyond all reasonable doubt.
Para No.20: These irregularities on doubt furnish a circumstance given raise to a strong suspicion in regard to the suspicion, however strong, cannot be a substitute for proof. And it is certainly not permissible to place the burden of proof on innocence on the accused of a criminal charge. "
3) 1972 SCC (Cri.) 258 in a case between Dr.S.L. Gosami Vs. State of M.P., wherein it is held as follows:
"The onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. Even in cases where the defence of the accused does not appear to be credible or is pulpably false that burden does not become any the less.
Para No.6: In our view, the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does it shift to the accused. It is no part of the prosecution duty to somehow hook the crook. "
4) 1994 SCC (Cri) 29 in a case between Ramswarup & others Vs. State of Haryana, wherein it is held that: 29 30 CC.NO.101/2012
"The real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubts the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence."
Para No.8: For the purpose of recording a finding as to whether the prosecution party or the accused party was the aggressor, all the evidence adduced on behalf of the parties and relevant circumstances have to be taken into consideration. It need not be pointed out that in such case it cannot be urged that there are two parallel versions of the occurrence before the court. The real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubts the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence. "
44. He further argues that the alleged seizure Ex.p.1 at Bazaar Street is not proved, that the prosecution is attempting to prove the seizure at the Courier Office by relying upon the Mahazar Ex.p.1 which is said to have been drawn before P.w.1. In his cross-examination, he has stated that he called the witnesses who were going at the entrance of the office, this shows witnesses were there in the entrance of the office. However, P.w.3 in his cross-examination at Para No.7 has stated that Customs Officers had brought two panchas to their shop, Ex.p.1 is typed by him as directed by Customs Officer, whereas P.w.4 in his cross examination at Para No.5 has stated that mahazar has been dictated by the witness in Kannada & he typed in English, there is no note that witnesses have dictated 30 31 CC.NO.101/2012 contents of mahazar in Kannada. P.w.4 has further stated at Para No.6 of the cross examination that Mr.Manjunath called the witnesses, he do not know from where the witnesses called, the address mentioned in the mahazar shows that they are not local witnesses from Ulsoor, the P.w.5 witness to the mahazar Ex.p.1 at Para No.5 of his cross examination has stated that he did not dictate the contents of mahazar, at Para.4 that I knew Mr.Manjunath earlier, I had seen him in the Customs Office, they were supplying manpower to Customs Office, he was posted to Customs Office to work, he has worked in Customs Office for one year during the search, further at Para No.7, P.w.4 has stated that as per the instructions of Manjunath, he put his signature to M.o's, mahazar and other papers, P.w.6 in his cross examination at Para No.5 has stated that himself and Mr.Harish were working in same office during 2010, he worked in Customs Office during search, he did not dictate the contents of mahazar, he was working in Customs Office when Manjunath called him to search, he was working in Customs Office during 2004 to 2013, he know the Customs Officers almost. This clearly establishes that the witnesses to the 31 32 CC.NO.101/2012 mahazar Ex.p.1 were not independent witnesses but were persons working in the office of Customs. This shows the witnesses were working in the office of Customs & they knew the Seizing Officer P.w.1 earlier to the panchanama recorded. This will cast doubt on the witnesses are independent. Further statements of the witnesses are contradicting each other on various material particulars. In view of the discrepancies highlighted and there being contradictions as to who dictated the panchanama, who typed it coupled with the fact that the witnesses were not independent witnesses, the very seizure is not established. This shows the complainant has failed to prove the best evidence & no explanation has been offered for not producing the best evidence.
45. The accused counsel further argues that mere marking of Ex.p.1 panchanama is not sufficient and content therefore should be proved before the court beyond any reasonable doubt. In this regard, the accused counsel has relied upon the following decisions :
1) AIR 1979 SC 1408 in a case between Suraj Mal V/s. State (Delhi Administration) :32 33 CC.NO.101/2012
"Where witnesses make two inconsistent statements in their evidence either at one stage, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses"
Para No.2: It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses.
It was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from the same infirmities for which the said evidence was disbelieved regarding the company of Ram Narain."
2) 2015 SAR (Criminal) 611 Supreme Court in a case between Golbar Hassain & Ors Vs., State of Assam.
"Para No.7 & 8: Appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused & the accused is entitled to get the benefit of any doubt."
"Para No.9 & 10: They contradict each other, and their happening in the market place, with shops both sides of the road - Therefore, as the testimonies of both the eye- witnesses are not completely reliable, this is a fit case where corroboration by an independent witness was required."
3) (2014) 2 Supreme Court case (Cri) 600 in a case between Radehy Shyam Vs. State of Rajasthan.
"Evidence of other prosecution witness not corroborating evidence of said child eyewitness - too many lacuna in prosecution case making prosecution story inherently improbable - Accused entitled to benefit of doubt"
4) 2006 Cri.L.J. 824 in a case between Survu Parshaiah Vs. State of A.P. "In this regard, the Honorable court made an observation in the above citation mere marking of the panchanama is not sufficient and that the content of the panchanama should be proved before the court. Here in the instant case the 33 34 CC.NO.101/2012 prosecution has failed to prove legally acceptable evidence to prove Ex.p.1 by any independent witness"
5) AIR 1932 Bom 181 in a case between Rustam Cursetji Lam Vs. Emperor.
"Further in this case also, the Honorable Bombay High Court made observation that the panchanama signed by two panchas is only useful to show that panchas were employed and for nothing else - If the evidence of the panchas is sought in corroboration then panchas must be called and accused allowed to cross examine. Hence, the prosecution has not complied sec.100 to 103 of Cr.P.C.,"
6) 2015(3) KAR 31 in a case between Muddoru Rajappa Thippanna Vs. State of Karntaka.
"Para No.16: Mere marking of document is not proof of its contents - Any documents placed on record by Parties if marked while evidence is recorded, that itself is not sufficient to accept such documents as having evidentiary value - order marking voluntary statements of accused and admitting them in evidence no proper."
7) I.L.R 1995 KAR 2266 in a case between Basappa Vs. State of Karnataka .
"In this regard, non - examination of the vital independent witness has not been examined and the prosecution has failed to make an explanation as to why independent witness has not been called for the mahazar Ex.p.1. Hence accused is entitled for acquittal"
46. It is also argued that charge framed relates to attempt to export where S.7 of the Customs Act would attract, the place where the seizure took place is a Courier Office at Bazaar Street, Ulsoor, Bangalore which is not a customs Area notified u/s.7 of the Customs Act for invoking S.113(d) of the Customs Act. But the prosecution has neither produced any material nor 34 35 CC.NO.101/2012 led any evidence to prove that the Courier Office is a Customs Area, the fact that no documents to show that it was a Customs Notified Area has been accepted by P.w.1, he in his cross examination has admitted that he did not verify before seizure that the place where the seizure took place is Customs notified area, Sky Speed Express is not Customs Notified Area, he did not found any shipping bill. P.w.2 has also accepted this fact during his cross-examination, he has stated that he did not enquire whether the place where the Sky Speed Express is situated is Customs Notified Area. P.w.3 in his cross- examination has stated at Para No.7 that he do not know whether the place where their shop is situated is Customs Notified Area. There is no proof to show that the place where the alleged seizure took place is customs notified area. Consequently, the attempt to export is not proved & no prosecution for punishment u/s.135 of the Customs Act is maintainable, hence the accused is liable to be acquitted on this ground.
47. It is also argued that for the purposes of Export, a Shipping Bill has to be filed in accordance with S.50 of the Customs Act. 35 36 CC.NO.101/2012 None of the witnesses have deposed with respect to any compliance of S.50 of the Customs Act. In this regard, P.w.1 in his cross examination has stated that he did not verify whether Sky Speed Express are the authorized persons for the purpose of Export, no Shipping Bill was prepared by that time, before export, shipping bill should be prepared, P.w.2 in his cross examination at Para No.4 has stated that he did not enquire as to how the Sky Net World Wide Express authorized Sky Speed Express to export through Courier. In the cross examination of P.w.3 at Para No.6 he has stated that he is the Proprietor of Sky Speed Express, he do not have Customs House Agent Licence, he do not have Courier Licence to export, Ex.p.3 is issued by Sky Net Express, not by them, further P.w.4 in his cross-examination has categorically stated at Para No.6 to that he did not find any Shipping Bill during search, there was no paper presented before the Proper Officer for Export. This way Ex.p.3 is not established and the charge of attempt to export is not proved.
48. In this regard, the accused has relied upon the following decision:
36 37 CC.NO.101/2012
1) AIR 1980 SC 1111 in a case between State of Maharashtra Vs. Mohd, Yakub & others.
"The Sessions Court in appeal acquitted the accused on the ground that the facts proved by the prosecution fell short of establishing that the accused had 'attempted' to export silver in contravention of the law because the facts proved, showed no more that the accused had only made 'preparations' for bringing this silver to the creek and 'had not yet committed any act amounting to a direct movement towards the commission of the offence'. Further in the instant case, the prosecution has failed to prove that the accused, even otherwise, neither made preparation nor attempt to export any restricted item as alleged in the charge".
49. The accused counsel argues that the prosecution is trying to establish that during the course of the search, test of the material was conducted, but except recording at Page No.2 of Ex.p.1 that the Superintendent of Customs took samples of the white crystalline substance and tested the same with a Narcotic drugs testing kit brought by him nothing placed to establish the same. The Superintendent stated that the substance did not answer tests for any narcotic drug or psychotropic and that from his experience he could identify the substance as Ketamine Hydrochloride a Veterinary Drug, nothing placed to prove the test of drug, no evidence as to what was the nature of test conducted & the existence of testing equipment. 37 38 CC.NO.101/2012
50. Even otherwise the witnesses to the mahazar namely P.w.5 & 6 have not spoken anything about the seizing Officer conducted test or about determination of the nature of material under seizure. Consequently, the fact of the seizure of any material much less Ketamine Hydrochloride is not established, panchanama and its contents should be proved with oral testimony of witnesses. In this regard the accused counsel has relied upon the decision reported in :
1) 2006 Cri.L.J., 824 in a case between Survu Parshaiah Vs. State of A.P., "Mere marking of panchanama - is not sufficient - contents there of should be proved before court - Order taking contents of Panchanama as corroboration to oral testimony or to draw inference of rash and negligent driving- improper."
51. He has further argued that the prosecution has failed to prove legally acceptable evidence to prove Ex.p.1 by any independent witness. The learned counsel for the accused has relied upon the decisions reported in -
1) AIR 1932 Bom 181 in a case between Rustam Cursetji Lam Vs. Emperor :
"The panchanama signed by two panchas is only useful to show that panchas were employed and for nothing else - If the evidence of the panchas is sought in corroboration then panchas must be called and accused allowed to cross examine. "38 39 CC.NO.101/2012
2) 2015 (3) KAR 31 in a case between Muddoru Rajappa Thippanna Vs. State of Karnataka that-
"Para No.16: Mere marking of document is not proof of its contents - Any documents placed on record by Parties if marked while evidence is recorded, that itself is not sufficient to accept such documents as having evidentiary value - order marking voluntary statements of accused and admitting them in evidence not proper."
52. It is also argued that Ex.p.7 is not proved by examining expert. In the cross-examination of P.w.7, she has stated at Para No.4 that herself and laboratory are part of Customs department, she do not know whether Ketamine Hydrochloride & Ketamine have got different chemical properties, he do not know what is the chemical name of Ketamine & Ketamine Hydrochloride. Further, P.w.7 at Para No.5 of the cross- examination has stated that the observations are not incorporated in Ex.p.7, in Ex.p.7 it has noted that purity of the sample could not be determined for want of certified reference standard and facilities, there is certified reference standard in both Ketamine & Ketamine Hydrochloride, certified reference standard was not used to test the sample in question, if certified reference standard was available they could have better result, 39 40 CC.NO.101/2012 at Para No.5 of the deposition of P.w.7, she has stated that Ex.p.7 is written by S.Kameshwar Rao, she has merely signed to Ex.p.7, at Para No.6 she has admitted that on she sent observation note, Mr.Kameshwar Rao prepared Ex.p.7, the observation note is available in office. This shows the person who has prepared Ex.p.7 has not been examined, P.w.7 though tested it, do not know on the basis of which Ex.p.7 has been prepared, this clearly goes to show that the evidence of P.w.7 do not establish that the seized material is Ketamine Hydrochloride.
53. In support of this, the learned counsel for accused has relied upon the following decisions:
1) AIR 1996 SC 2184 in a case between S.Gopal Reddy Vs. State of A.P., wherein it is held that -
"The evidence of an expert is a rather weak type of evidence & the courts do not generally consider it as offering 'conclusive' proof and therefore, safe to rely upon the same without seeking independent & reliable corroboration. In Megan Bihari Lal Vs. State of Punjab - AIR 1977 SC 1091."
" It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution that the opinion of a handwriting expert. There is profusion of presidential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and I have almost become a rule of law. It was held by this court in Ram Chandra Vs. State of U.P. AIR 1957 SC 381, that unsafe to treat 40 41 CC.NO.101/2012 expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence."
2) AIR 1959 SC 488 in a case between Haji Mohd. Vs. State of West Bengal, wherein it is held that -
"In the circumstances of a case the court can refuse to place any reliance on the opinion of an expert which is unsupported by any reason."
3) AIR 1977 SC 1091 in a case between Magan Biharilal Vs. State of Punjab, wherein it is held that -
"It is now well settled expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. It is unsafe to base a conviction solely on expert opinion without substance being opinion evidence is by its very nature, weak and infirm and cannot of itself form the basis for a conviction. Case law traced Cr.Rev. No.314/1973 D/- 12-9-1975 (Punj.)."
4) AIR 1960 All 460 in a case between Raj Kishan Vs. State, wherein it is held that -
"Drugs Act (1940) S.25 - Report of Government Analyst in respect of medicine not registered as patent and proprietary medicine - Report must be in prescribed form - Protocol test applied without oral testimony of analyst - Evidence Act (1872), S.45, 62."
The report cannot be treated as evidence of the facts stated therein. If the report cannot be treated as evidence, the Government Analyst must himself be examined as a witness to prove his opinion; otherwise the case will not be proved against the accused.
Hence, the seized material being Ketamine Hydrochloride is not proved and the accused be acquitted."
54. The accused counsel further argued that both Notification No.67- (RE-2007) Dt:22.12.2007 & Notification Dt:10.02.2011 are not applicable. As on the date of seizure, the Notification dated:10.2.2011, Ketamine Hydrochloride or any preparation of 41 42 CC.NO.101/2012 such substance or material was not available in the statue, the Notification also do not set out that it would have retrospective effect, it has put only restriction to Ketamine not to Ketamine Hydrochloride which is distinct and separate from Ketamine.
55. Further, P.w.7 having categorically stated that the report was not incorporated in Ex.p.7, purity has not been set out, reference standards are absent. This make the very material under seizure has not been proved as either Ketamine or Ketamine Hydrochloride.
56. In support of his argument, the counsel for the accused has relied upon the following decisions:
1) AIR 2000 SC 811 in a case between Kolhapur Canesugar Works Ltd., Vs. Union of India & others, wherein it is held that -
"The position is well-known to the common law, the normal effect of repealing a statute or deleting a provision is to obliterate it from the statue book as completely as if it had never been passed, and a statute must be considered as a law that never existed.ther the law on the date of offence would apply."
2) 2014 SAR (Cri.) 176 in a case between Vasinder Singh Vs. State of Punjab & Anr., the Hon'ble Supreme Court, "Notification by Punjab Government that this section is in force dated:08.03.2011 - FIR for the offence was dated:24.09.2009 - said notification will obviously not apply to the case in hand as the alleged offence was committed in 2009 & retrospective effect will not apply in the case of criminal law - Hence, no offence made out against appellant - proceeding initiated against the 42 43 CC.NO.101/2012 appellant - proceedings against the accused is liable to be quashed."
3) (2009) 6 SCC 490 in a case between Jawahar Singh Vs. State of GNCT of Delhi, in this regard, the Hon'ble Supreme Court said that -
"Penal statues or provision - substantive provision - amendment of substantive provision - whether retrospective or prospective - held a substantive provision of an amending Act unless specifically provided for a otherwise intended by parliament, should be held to have a prospective operation - statue law - legal implication of a repeal and expiry of statute distinguished."
4) (2006) 6 SCC 289 - Vijay Vs. State of Maharashtra & others. In this regard, the Hon'ble Supreme Court made an observation that "General rule of construing statue to have a prospective effect - Exceptions to - It does not apply to disqualifying, curative or clarificatory statues - If on a plain or literal reading of a legislative intendment is clear that it is to have retrospective effect and it does not produce any absurdity or ambiguity thereby, court will give effect there to ........"
5) AIR 1953 SC 221 in a case between Hoosein Kasam M Dada (India) Ltd., Vs. State of M.P., & 3 others., In this regard, the Hon'ble Supreme Court has observed that "As regards the general principles applicable to the case there was no controversy. On the one hand, it was not disputed that if the matter in question be a matter of procedure only, the petition is well founded. On the other hand, if it be more than a matter of procedure, if it touches a right in existence at the passing of the Act, it was conceded that, in accordance with a long line of authorities extending from the time of Lord Coke to the present day, the appellants would be entitled to succeed. The Judiciary Act is not retrospective by express enactment or by necessary intendment. And therefore the only question is, was the appeal to His Majesty in Council a right vested in the appellants at the date 43 44 CC.NO.101/2012 of the passing of the Act, or was it a mere matter of procedure? It seems to their Lordships that the question does not admit of doubt. The deprive a suitor in a pending action of an appeal to a superior tribunal which belonged to him as of right is a very different thing from regulating procedure. In principle, their Lordships see no difference between abolishing an appeal altogether & transferring the appeal to a new tribunal. In either case there is an interference with existing rights contrary to the well known general principle that statues are not to be held to act retrospectively unless a clear intention to that effect is manifested."
6) 2015 (40) STR 71 (Mad.) in a case between Fifth Avenue Sourcing (P) Ltd., Vs. Commissioner of Service Tax, Chennai. In this regard, the Hon'ble Supreme Court has observed that "Right of appeal accrued on date of initiation and not by law at date of its decision or at date of filing of appeal - As amended provisions of Act are not given retrospective effect as from anterior date it has been construed that amended provisions are prospective......."
57. It is also argued that the reliance cannot be placed on the statement of accused recorded under the provisions of S.107 & 108 of the Customs Act, which is allegedly after the arrest of the accused as it is on force.
58. It is settled position of law that any confession statement made by accused in the custody is inadmissible in law unless it has been proved with corroborative evidence that the statement and its contents are voluntary.
44 45 CC.NO.101/2012
59. It is also argued that in the statement of accused recorded u/s.313 of Cr.P.C., by the court, the accused never admitted any facts that he has committed the offence, he has parabolized his contention of defence by way of cross examination of witnesses.
60. In this regard, the counsel for the accused has relied upon the following decisions reported in :
1) 2013 SAR (Criminal) 549 in a case between Sunil Kundu & Anr., Vs State of Jharkand, wherein it is held that -
"Appreciation of evidence - when prosecution is not able to prove its case beyond reasonable doubt it cannot be taken advantage of the fact that the accused have not been able to parabolize their defence - It is well settled law that the prosecution must stand or fall on its own feet."
2) 2014 TIOL 85 SC FEMA in a case between A.Tajudeen Vs. Union of India, it has been observed that -
"The statement can under no circumstances constitute the sold basis for recording the finding of guilt against the Appellant. If findings could be returned by exclusively relying no such oral statement, such statements could easily be trust upon the persons who were being proceeded against on account of their actions in conflict with the provisions of the 1973 Act. Such statements ought not to be readily believable, unless there is independent corroboration of certain material aspects of the said statements through independent sources."
61. It is also argued that Ex.p.8 adjudicating order is not applicable to criminal proceedings, same is not admissible in criminal proceedings, the enquiry proceeding and Criminal 45 46 CC.NO.101/2012 proceedings are entirely different, it is settled position of law that the court in criminal trial has to consider the evidence that is recorded before it and not to go by the order which is not part of the evidence, the Additional Commissioner of Customs K.V.V.Diwakar, neither has cited nor examined before the court to prove the content of Ex.p.8.
62. In this regard, the learned counsel for the accused has relied upon the Judgment in Cr.A.No.1698/2006 in a case between K.Gunavela Vs. C.B.I ACB, Bangalore, dated:09.02.2013, wherein the Hon'ble High Court of Karnataka has held as follows:
"It is a settled law that the trial court in a criminal trial has to consider the evidence that is let in before it and not to go by the other materials which are not part of the evidence let in by the prosecution. The entire court enquiry proceedings referred to by the trial court was altogether a different proceedings and the accused person in the instant case had no opportunity to cross examine the witness examined during the court of enquiry proceedings.
Para No.20: Therefore, by merely marking the enquiry proceedings could the trial court act upon such material is the first point for consideration. In this regard, the decision referred to by learned Senior Counsel Shir.C.V.Nages for A.1 requires to be taken.
In case of P.Jayappan Vs. S.K. Perumal (AIR 1984 S.C. 1693), in the criminal case all the ingredients of the offence in question have to be established in order to secure the conviction of the accused. The criminal court no doubt has to give due regard to the result of any proceedings under the Act having a bearing on the question in issued and in an appropriate case it may drop the proceedings in the light of an order passed under the Act. It does not, however, mean that the result of a proceeding under the Act would be binding on the criminal court. The criminal Court had to judge the case independently on the evidence placed before it.46 47 CC.NO.101/2012
The court further held that the nature and object of the inquiry is altogether different from that in a criminal case and any decision arrived at in the writ petition on the issue cannot have any relevance much less any binding effect, in any criminal proceeding which may be taken against an particular police officer. It was further held that the pendency of criminal proceedings cannot be urged as a bar against the court trying a civil proceeding or a writ petition where a similar issue is involved and the two are entirely distinct and separate proceedings and neither is a bar against the other.
Thus, in view of the law above, the law on the issue stands crystallized to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal cases is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt.
There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject matter and both the cases have to decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections.41 to 43 of the Evidence Act, 1872 dealing with the relevance of previous judgements in subsequent cases may be taken into consideration.
There is a great substance in the argument advanced by the learned senior counsel C.V.Nagesh referring to the aforesaid decisions of the Apex Court, that the criminal court will have to decide on the basis of evidence let in before it whether the respondents herein have committed the offences with which they were charged and put on trial. As the evidence placed before the trial court by the prosecution does not establish the charge leveled against the accused person beyond all reasonable doubt, the decision rendered by this court in the aforementioned Division Bench ruling cannot itself be taken as having established the guilt of the accused persons. "
63. It is settled position of law that the burden of proof always is on the prosecution to prove the existence of all the ingredients 47 48 CC.NO.101/2012 constituting the alleged offence. In the present matter none of these exist and hence the accused is liable to be acquitted.
64. Ex.p.9 sanction for prosecution is not proved which is mandatory requirement under the law. The prosecution has not examined author of Ex.p.9 in order to prove whether he has applied his mind or not and whether he has gone through the prosecution papers, and which are the records sent for according sanction and how he has applied his mind for according sanction for prosecution of the accused. His non- examination is fatal to the prosecution case.
65. The prosecution has failed to prove the charges leveled against the accused beyond all reasonable doubt. Hence accused be acquitted.
66. On the other hand the learned counsel for complainant argues that Customs Officer is not a Police Officer, a confessional statement recorded by him cannot be said to have been obtained by threat, inducement or promise, hence admissible in evidence of prosecution u/s.135 of the Customs Act. Such a confessional statement although subsequently retracted, if on facts found voluntary and truthful, can form the 48 49 CC.NO.101/2012 exclusive basis for conviction, each detail in the retracted confession need not be corroborated by other evidence. In such statement under Sec.108 of the Customs Act, the accused has admitted the seizure of the drugs in question and the offence committed. As such the contradictions in the evidence of panch witnesses as to seizure do not make the case of prosecution fatal.
67. In support of his argument, the complainant has relied upon Head note B & C in the judgement reported in (1997) 3 SCC Page No.721 in a case between K.I.Pavunny Vs. Assistant Collector (HQ) Central Excise Collectorate, Cochin, wherein it is held as follows:
"B). Customs Act, 1962 - Ss. 108 & 135 - Customs Officer recording the statement of a person who is suspected of having committed an offence under the Act - Status of such officer and admissibility of such statement in evidence - Held, such an officer, although not a police Officer, is an authority within the meaning of S.24 of Evidence Act - however, a confessional statement recorded by reason of statutory compulsion or given voluntarily by the accused pursuant to his appearing against summons or on surrender, held, cannot be said to have been obtained by threat, inducement or promise - Hence, is admissible in evidence of prosecution u/s.135 of the Customs Act or other relevant statues - Such a confessional statement although subsequently retracted, if on facts found voluntary and truthful, can form the exclusive basis for conviction - Not necessary that each detail in the retracted confession be corroborated by ............"
C): Evidence Act, 1872, S.24 - "Confession caused by inducement, threat or promise - Confessional statement given under statutory compulsion or after issuance of summons or after surrender, whether ipso facto amounts to" 49 50 CC.NO.101/2012
68. It is also argued that the Hon'ble High Court of Hariyana has convicted solely on the basis of testimony of official witnesses. If the physical possession of the contraband by the accused is proved, the burden shifts on the accused to prove that he was not in conscious possession of the contraband, the accused could have adduce evidence when he is called upon to enter on his defence, but not done so, further in his statement u/s.313 of Cr.P.C., the accused has not stated anything as to why would the customs officers foist the false case against him, about 3.4 K.g Ketamine Hydrochloride was recovered from the possession of the accused. Admittedly, the customs officers had no previous enmity with the accused. As such it is not possible to accept the contention of the accused that he is being falsely implicated. In support of his argument, he has relied upon Head Notes A,B,C,D and E of the Judgement reported in 2015 SAR (Criminal ) 1218 in a case between Baldev Singh Vs. State of Haryana, wherein it is held as follows:-
"A). Narcotic Drugs & Psychotropic Substances Act, 1985 - Sec.15 - Illegal possession of poppy husk - Non examination of independent witnesses and basing conviction solely on the testimony of official witnesses -50 51 CC.NO.101/2012
permissible when there is satisfactory explanation for non- examination of independent witnesses and the evidence of such official witnesses inspires confidence. B). Narcotic Drugs and Psychotropic Substances Act, 1985 - Secs.35, 15 - Illegal possession of poppy husk - Presumption of culpable mental state - Once the physical possession of the contraband by the accused has been proved, Sec.35 of the NDPS Act come into play and the burden shifts on the appellant-accused to prove that he was not in conscious possession of the contraband - Explanation to sub-section.(1) of Sec.35 expanding the meaning of 'culpable mental state' provides that 'culpable mental State' includes intention, knowledge of a fact and believing or reason to believe a fact - 2) of Sec.35 provides that for the purpose of Sec.35, a fact is said to be proved only when the court believes it to exist beyond a reasonable doubt and not merrily when it existence is established by a preponderance of the probability - Once the possession of the contraband by the accused has been established, it is for the accused to discharge the onus of proof that he was not in conscious possession - Burden of proof cast on the accused under Sec.35 of the NDPS Act can be discharged through different modes - One of such modes is that the accused can rely on the materials available in the prosecution case raising doubts about the prosecution case - The accused may also adduce other evidence when he is called upon to enter on his defence - If the circumstances appearing in the prosecution case given reasonable assurance to the court that the accused could not have had the knowledge of the required intention, the burden cast on him u/s.35 of the NDPS Act would stand discharged even if the accused had not adduced any other evidence of his own when he is called upon to enter on his defence".
C). Narcotic Drugs & Psychotropic Substances Act, 1985
- Sec.15 - Illegal possession of poppy husk - Non examination of IO who prepared the rukka - Effect - No doubt, it is always desirable that prosecution has to examine the investigating officer/police officer who prepared the rukka - Mere non-examination of investigating officer does not in every case cause prejudice to the accused or affects the credibility of the prosecution case - Whether or not any prejudice has been caused to the accused is a question of fact to be determined in each case - Since P.w.1 was a part of the police party and P.w.1 has signed in all recovery memos, non-examination of IO/SI could not have caused any prejudice to the accused in this case nor does it affect the credibility of the prosecution version". 51 52 CC.NO.101/2012 D). Narcotic Drugs & Psychotropic Substances Act, 1985
- Sec.15 - Illegal possession of poppy husk - Plea of false implication - In his statement u/s.313 Cr.P.C., no plea has been taken that the appellant was not in conscious possession of the contraband - Appellant has only pleaded that he being falsely implicated and that a false case has been foisted against him in the police station - In his statement u/s.313 Cr.P.C., the appellant had not stated anything as to why would the police foist the false case against the appellant - It is to be noted that huge quantity of poppy straw was recovered from the possession of the appellant - Admittedly, the police officials had no previous enmity with the appellant - It is not possible to accept the contention of the appellant that he is being falsely implicated as it is highly improbable that such a huge quantity has been arranged by the police officials in order to falsely implicate the appellant.
E). Narcotic Drugs & Psychotropic Substances Act, 1985
- Sec.15 - Illegal possession of poppy husk - Acquittal of accused by trial court - Reversal thereof, by High Court - Justifiability - Case of prosecution is that appellant was found in possession of thirty three yellow coloured gunny bags containing poppy husk - Sessions Judge vide its judgement acquitted the appellant observing that no other witness except P.w.1/ASI was examined and that P.w.1's evidence was not trustworthy to base the conviction - High Court vide impugned judgement reversed the judgement of acquittal and convicted the appellant u/s.15 of the Act and sentenced him to undergo rigorous imprisonment and imposed fine as aforesaid - Instant appeal - Case of prosecution hinges on the testimony of sole witness P.w.1 - Undisputedly, P.w.1 was the member of the Nakabandi party headed by SI/IO - Admittedly, P.w.1 signed all the documents and also witness to the recovery memo - Even after searching cross - examination, evidence of P.w.1 remains unshaken - When the police party was holding Nakabandi, the tractor was intercepted and the driver of the tractor - appellant was apprehended under suspicion at odd hours of midnight, prosecution cannot be expected to examine independent witnesses - In his cross examination, P.w.1 sated that two persons had come at the place of Nakabandi in the midnight and they were asked to join, but they refused to join - Testimony of P.w.1 & evidence on record amply establishes physical possession of the contraband by the appellant - Appellant being the driver of the vehicle by all probabilities must have been aware of the contents of the bags transported in the trolley attached to the tractor
- From the evidence led by the prosecution, it has been proved beyond reasonable doubt that the accused being the driver of the tractor was in conscious possession of 52 53 CC.NO.101/2012 the thirty three bags of poppy husk in the trolley attached to the tractor - Upon appreciation of evidence, High Court rightly reversed the acquittal and convicted the appellant u/s.15 of the Act - The occurrence was in the year 1990 and the appellant has suffered a protracted proceeding of about twenty five years - In the facts & circumstances of the case, the sentence of imprisonment imposed on the appellant is reduced from twelve years to ten years."
69. It is also arguments of the learned counsel for the complainant that the court cannot start with the presumption that the complainants records are untrustworthy, that the official acts of the Customs officers regularly performed are wise principle of presumption and recognized even by the legislature, when a customs officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused, it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable, it is for the accused through cross-examination of witnesses or through any other materials to show that evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. In support of his arguments, he has relied upon the Judgement reported in State Govt., of NCT Delhi Vs. Sunil which is reproduced in the Judgement reported 53 54 CC.NO.101/2012 in 2015 SAR (Criminal) 597 in a case between Kulwinder Singh & anr Vs. State of Punjab which reads as follows:-
"We feel that it is an archaic notion that actions of the police Officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognized even by the legislature. Hence when a police Officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused through cross-examination of witnesses or through any other materials, to show that evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions".
70. The learned counsel further argues that Discrepancies do not go to root of the matter and do not shake the basic version of the witnesses, the Court should not attach undue importance to them. In support of his arguments, he has relied upon the Head Note - D of the Judgement reported in 1990 CRI. L.J. 463 54 55 CC.NO.101/2012 in a case between Lallan Vs. State of U.P., wherein it is held as follows:
"D) Evidence Act (`1872), S.3 - Appreciation of evidence
- Discrepancies - When they do not go to root of the matter and do not shake the basic version of the witnesses, Court should not attach undue importance to them. AIR 1988 SC 696 & AIR 1972 SC 2020, Rel. on".
71. The learned counsel further argues that when the Officer of FSL had no interest in concocting report against accused, said report is admissible. In support of his argument, he has relied upon Head Note-B of the Judgement reported in 2003 CRI.L.J. 356 in a case between Gulam Nurmamad Theim Vs. State of Gujarat wherein it is held as follows:
"(B) Narcotic Drugs & Psychotropic substances Act (65 of 1980), S.23 - Search and seizure - Report of Forensic Science Laboratory - Admissibility - Xerox copy of report sent by FSL after certifying it to be true copy - Officer of FSL had no interest in concocting report against accused - Said report is admissible."
72. The learned counsel for the accused has further argued that the accused in statement under Sec.313 of Cr.P.C., has given statement, so, his defence that he has not committed any offence cannot be believed. In support of his arguments, he has relied upon Head Note-B of the Judgement reported in AIR 1983 Supreme Court 168 in a case between Assistant Collector 55 56 CC.NO.101/2012 of Central Excise, Calcutta, Appellant Vs. V.P.Syed Mohammed Respondent, wherein it is held as follows:
"(B) Customs Act (52 of 1962), S.135(b) - Gold (Control) Act (1968), Sec.85(ii) - Offence under - Proof - Seizure of contraband gold - In his statement under Section.342, Cr.P.C., accused admitting that packet containing gold was recovered from him but pleading ignorance as to contents of packet and also denying its ownership -
Stating further that he was in possession of the packet for further transmission to another person without his knowledge that if contained gold bars - Held, his reply consisted of two distinct matters and were capable of being split - He could be convicted on basis of first part of the statement admitting recovery of gold from him, 1973 Cri.L.J., 1551 (Ker), reversed, (Criminal P.C., (1974), S.342)."
73. He has further argued that in the unreported Judgement of the Hon'ble Madras High Court, it is made clear that Ketamine Hydrochloride and the Ketamine Hydrochloride are one and the same. Merely because in the notification the word hydrochloride was not there the accused cannot take advantage of the same. Another the notification was passed subsequently including Ketamine Hydrochloride with retrospective effect. So, the accused is fit to be convicted. In support of his arguments, he has relied upon unreported Judgement of the Hon'ble Madras High Court in W.P.Nos.26551 & 26552/2010 in a case between S.P.Rajapandian & Hiren Vora @. Ambani Vs. Senior Intelligence Officer, Chennai-17, wherein it is held as follows: 56 57 CC.NO.101/2012
"17. Even the little doubt that one had is cleared by the notification, dated:10.2.2011 holding that all derivatives of Ketamine are psychotropic substances covered by the NDPS Act. The said notification issued in terms of Section.3 of the Act is by way of clarification and not a notification intended to have any prospective application. Even a lay person with a little knowledge of Chemistry can safely conclude that Ketamine Hydrochloride if heated, the Hydrochloride part will evaporate and Ketamine alone will remain. It does not require a great Chemist to make this transformation. Therefore, the petitioners cannot be allowed to do things by subterfuge which had been specifically prohibited by law."
74. In reply the accused counsel argues that the prosecution is trying to counter the contentions of accused by contending and relying upon the decision of the Hon'ble Supreme Court in Baldev Singh Vs. State of Haryana - 2015 SAR (Cri.) 1218, the said Judgement would not come to the aid of the prosecution in as much as the facts set out therein do not match. The present case is not a case where independent witnesses have not been examined. On the contrary the independent witnesses have been examined as P.w.5 & 6. Consequently contradiction between the deposition of P.w.5 & 6 with that of the Seizing Officer P.w.1 & the recording Officer P.w.2 - Srinivas Prasad are revealing contradictory positions. Even otherwise, the reliance on the statement of the accused does not serve the purpose of the prosecution inasmuch as the contents of the statement has not been proved or corroborated. There is no 57 58 CC.NO.101/2012 corroboration that the place of the search was a Customs Area, was in the process of export, the recovery is not established, the test allegedly conducted during the course of search is not established, the consequent test by an expert has not been established & in the absence of any of these materials having been established or corroborated cannot form the basis to place reliance on the statement of the accused. In the event reliance is placed on the statement of the accused as is being sought by the prosecution it would lead to the fact that the prosecution ought not to have examined any of the witnesses, but merely produced the statement and sought for conviction. This procedure or contention would run contrary to the established procedure of Criminal Law and create a new methodology not otherwise in existence. Hence, this statement is not capable of being relied upon.
75. In reply the accused counsel has further argued that the prosecution cannot rely upon the decision of the Madras High Court tendered in N.K.Jawahar Ali Vs. State of Tamil Nadu in HCP No.523, 640 & 711/2009. These decisions have been rendered in case of a detention which is distinct and separate 58 59 CC.NO.101/2012 from a trial. The Detention order is an executive order where establishment of facts and proof is not available. Whereas in a trial, prosecution is required to prove all facts. Even otherwise Detention order is preventive in nature, whereas trial and a Judgement is punitive in nature where the nature of the proceedings are distinct and separate.
76. It is also argued that the reliance also cannot be placed on the decision in W.P.No.26551 & 26552/2010 in the matter S.P.Raja Pandian Vs. Senior Intelligence Officer dated:7.6.2011. The said Judgement arises at the time of grant of bail/legality of the bail proceedings. The findings relating to Ketamine & Ketamine Hydrochloride as laid down in the said Judgement is not applicable in the present case, as the prosecution has not established the fact of testing the material at the time of search.
77. Heard, perused, the charge framed against accused is U/s.135(1)(a) & Sec.135(1)(b) of the Customs Act which reads as follows :
S.135:Evasion of Duty or Prohibitions:-
(1) Without prejudice to any action that may be taken under this Act, if any person:59 60 CC.NO.101/2012
a) is in relation to any goods in any way knowingly concerned in mis-declaration of value or in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods, or
(b) acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under section 111 or section 113, as the case may be."
78. The evidence of P.w.1, 3 to 6 corroborates as to the seizure of the drug in question from the possession of the accused and sample drawn. Of course, the admissions and contradictions reveals the panch witnesses are known to the department. But only because of which their entire evidence cannot be discarded. As to the seizure of the drug in question from the possession of the accused and sample drawn, their evidence corroborates with the evidence of P.w.1, 3 and P.w.4. P.w.4 who is the Manager of the courier office has well supported the prosecution case. No reasons to disbelieve their evidence.
79.. The admissions of P.w.7 do not leads to doubt her statement that the drug in question is Ketamine Hydrochloride . 60 61 CC.NO.101/2012 Her statement that in Ex.p.7 they have noted that purity of the sample could not be determined for want of certified reference standard and facilities, there is certified reference in both ketamine & Ketamine Hydrochloride, such certified reference standard was not used to test the sample in question, if certified reference standard was available they could have get better result do not help accused as it does not mean that the result is wrong. The evidence placed proves the offence u/s.135(1)(b) of the Act. It is the case of the prosecution that the accused has attempted to export the prohibited drugs in question and has committed offence under Sec.135(1)(b) of the Act. But export of prohibited goods attracts Sec.135(1)(c) of the Act, but for the alleged export, no materials placed by the prosecution side. Ex.P.2 invoice and the Ex.P.3 the receipt are not sufficient to prove alleged Export. Thus, I hold that the prosecution has not made out case for the offence under Sec.135(1)(a) or 135(1) (c) of the Act. Admissions of P.w.1 that he did not verify whether the place where the customs notified area is customs notified area, no shipping bill was prepared, it was not presented before officer seating in the office situated at customs notified area, 61 62 CC.NO.101/2012 there is no Indication showing Mo.4 is received from CHL, admission of P.w.2 that he did not enquire as to whether Sky speed express has got CHA licence or that he did not enquire as to whether sky speed express was having courier licence to export, whether sky speed express is situated at customs notified area, whether sky net work wide authorized sky speed express to export through courier, admission of P.w.3 that they do not have Customs House Agent Licence & Courier licence to export, they do not know whether the place where their shop is situated is customs notified area, the admissions of P.w.4 that the place where the sky speed express is situated is not customs notified area are not fatal to the case of prosecution as the offence alleged is u/s.135(1)(a) & (b) of the Customs Act where the alleged export is not require to be proved.
80. In the Judgement reported in AIR 1990 SC 1459, in a case between Vijaye Singh & others Vs. State of U.P, it is held that the burden is always on the prosecution & never shifts, the accused is presumed to be innocent unless proved guilty by the prosecution & the accused is entitle to the benefit of every reasonable doubt. Ofcourse the ingredients of the charge that 62 63 CC.NO.101/2012 the accused attempted to export drug in question is not proved, but the at the time of alleged export the accused was in possession of the drug in question is makes the offence under sec.135(1)(b) of the Act and same is proved by placing sufficient evidence.
81. As same, in the Judgement reported in 1980 SCC (Cri) 546 in a case between Abdula Mohammad Paragarkar Vs. State, it is held that the onus of proof of the existence of every ingredient of the charge always rests on the prosecution and never shifts.
82. As the same, in the Judgement reported in 1972 SCC (Cri.) 258 in a case between Dr.S.L.Gosami Vs. State of M.P., it is held that the onus of proving all the ingredients of an offence is always upon the prosecution and at no stage does which shift to the accused. It is also held that the real onus is on the prosecution party to prove its case, including the manner of occurrence beyond all reasonable doubt, the accused has only to raise a doubt in the mind of the court or to satisfy the court that the defence version disclosed by the accused was a probable version of the occurrence.
63 64 CC.NO.101/2012
83. But, above findings in the above cases have been given in Indian Penal Code Cases under Sec.302, 324, 326, 420, 468, 471,120B, 409 and with regard to evidence of eye witnesses, but this case is under Customs Act, the offence alleged is u/s.135(1)(a) & (b) of the Customs Act where proof of possession & seizure of the properties in question is important. In the judgement relied upon by the complainant counsel reported in 2015 SAR (Criminal) 1218 in a case between Baldev Singh Vs. State of Haryana, the Hon'ble High court of Hriyana has in a case under NDPS Act, under similar set of facts convicted solely on the basis of testimony of official witnesses. It is held that if the physical possession of the contraband by the accused is proved, the burden shifts on the accused to prove that he was not in conscious possession of the contraband. In this case, the chief examination of witnesses reveals that the property is seized at Sky Speed Express Courier Office at Ulsoor from the possession of accused in presence of two independent witnesses, that at the same time, the sample is also drawn and that the drug is alleged to have been smuggled is Ketamine Hydrochloride. During cross- 64 65 CC.NO.101/2012 examination nothing elicited which leads to disbelieve the case of prosecution. Of course, the evidence of P.w.1 that he called the witnesses who were going at the entrance of the office, the evidence of P.w.3 that the Customs Officers had brought two panchas to their shop. Admission of P.w.4 that Ex.p.1 is typed by him as dictated by the Customs Officer, mahazar has been dictated by the witnesses, they dictated in Kannada, he typed in English, there is no note that the witnesses have dictated contents of mahazar in Kannada in mahazar. Mr.Manjunath called the witnesses, he do not know from where the witnesses called, the address mentioned in the mahazar shows that they are not local witnesses from Ulsoor. He has also stated that he did not dictate the contents of mahazar. The admission of P.w.5 that he knew Mr.Manjunath earlier, he had seen him in the Customs Office, they were supplying manpower to Customs Office, he was posted to Customs Office to work, he has worked in Customs Office for one year during the search, he has put his signature to Mo's, mahazar & other papers, admission of P.w.6 that himself and Mr.Harish were working in the same office during 2010, he worked in Customs Office 65 66 CC.NO.101/2012 during search, he did not dictate the contents of mahazar, he was working in Customs Office when Manjunath called him to search, he was working in the Customs Office from 2004 to 2013, he know all the Customs Officers almost shows there are contradictions in the evidence of P.w.1, 3 & 4 with regard to panch witnesses are independent witnesses. It is also forthcoming that the witnesses are known to department. But only because of contradictions referred above & that the panch witnesses were known to investigation officer, it cannot be considered that the mahazar is not proved, because the accused has not stated anything as to why would the customs officers foist the false case against him, according to the complainant, about 3.4 Kgs Ketamine Hydrochloride is recovered from the possession of the accused which is before the court as M.O. Admittedly, the customs officers had no previous enmity with the accused. As such it is not possible to accept the contention of the accused that he is being falsely implicated.
84. Coming to the arguments of the learned counsel for the accused that the place where the seizure is took place is not 66 67 CC.NO.101/2012 customs notified area, hence the alleged export is not proved, the admissions of P.w.1 that he did not verify before seizure that the place where the seizure took place is Customs notified area, the Sky Speed Express is not Customs notified area, he did not found any shipping bill, the admissions of P.w.2 that he did not enquire whether the place where the Sky Speed Express is situated is Customs Notified Area the admission of P.w.3 that they do not have Customs House Agent licence & Courier licence to export, they do not know whether the place where their shop is situated is customs notified area. The admissions of P.w.4 that the place where the sky speed express is situated is not customs notified area do not acquire any importance as it will not lead to doubt the case of prosecution as to seizure & sample drawn of the Ketamine Hydrochloride from the possession of the accused which are require to prove the charge u/s.135(1)(b) of the Customs Act.
85. Of course, in the Judgement reported in AIR 1979 SC 1408 in a case between Suraj Mal Vs. State (Delhi Administration), it is held that when the testimony of witnesses becomes unreliable and unworthy of credence and in the absence of 67 68 CC.NO.101/2012 special circumstance no conviction can be based on the evidence of such witnesses.
86. As same, in the Judgment reported in 2015 SAR (Criminal) 611 Supreme Court, in a case between Golbar Hassain & Ors., Vs. State of Assam, it is held that there is a presumption of innocence in favour of the accused & the accused is entitled to get the benefit of any doubt. In the same Judgement, it is held that where the testimonies of both the eye witnesses are not completely reliable, this is a fit case where corroboration by an independent witnesses was required, In the Judgement reported in (2014) 2 Supreme Court Cases (Cri) 600 in a case between Radehy Shyam Vs. State of Rajasthan, it is held that the evidence of other prosecution witnesses not corroborating evidence of said child eyewitnesses, too many lacuna in prosecution case making prosecution story inherently improbable, the accused entitled to benefit of dobut. In the Judgement reported in 2006 Cri.L.J. 824 in a case between Survu Parshaiah Vs. State of A.P, it is held that the content of the panchanama should be proved before the court, mere marking of the panchanama is not sufficient. In the Judgement 68 69 CC.NO.101/2012 reported in AIR 1932 Bom 181 in a case between Rustam Cursetji Lam Vs. Emperor, it is held that if the evidence of the panchas is sought in corroboration, then panchas must be called and accused be allowed to cross-examine. In the Judgement reported in I.L.R 1995 KAR 2266 in a case between Basappa Vs. State of Karnataka, it is held that non examination of the vital independent witnesses has not been examined and the prosecution has failed to make an explanation as to why independent witness has not been called for the mahazar Ex.p.1. Further, in the Judgement reported in 2015(3) KAR 31 in a case between Muddoru Rajappa Tipanna Vs. State of Karnataka, it is held that mere marking of document is not proof of its contents, any documents placed on record by parties if marked while evidence is recorded, that itself is not sufficient to accept such documents as having evidentiary value, order marking voluntary statements of accused and admitting them in evidence not proper.
87. Here, in the Judgement reported in AIR 1932 Bom 181 in a case between Rustam Cursetji Lam Vs. Emperor & the Judgement reported in I.L.R 1995 KAR 2266 in a case between 69 70 CC.NO.101/2012 Basappa Vs. State of Karnataka are not applicable to the case on hand, as the pancha witnesses are examined in this case, but in the above referred case such panch witnesses were not examined.
88. The Judgement reported in 2015(3) KAR 31 in a case between Muddoru Rajappa Tipanna Vs. State of Karnataka is also not applicable to the case on hand as in this case the panch witnesses & Investigation Officer have deposed about seizure and they have been cross examined too by the accused counsel. As to other Judgements i.e., reported in 2006 Cri.L.J., 824 in a case between Survu Parshaiah Vs. State of A.P., (2014) 2 Supreme Court Case (Cri.) 600 in a case between Radehy Shyam Vs. State of Rajasthan & AIR 1979 SC 1408 in a case between Suraj Mal Vs. State (Delhi Administration), in this case there is no such material contradictions in the evidence of panchas and P.w.1, 3 & 4 the contradictions which have been pointed out by the accused counsel are ignorable & do not give any doubt as to the case of the prosecution. Actually, in the Judgement relied upon by the complainant in a case between St. of NCT of Delhi Vs. Sunil it is observed that 70 71 CC.NO.101/2012 during post independent period, the Police Officers were apprehended initial distrust, its hangover persisted during post independent years, it is time now to start placing at least initial trust on the actions of police, they cannot start with the presumption that the police records are untrustworthy. Further, in the Judgement relied upon by complainant in a case reported in 1990 Crl.L.J. 463, it is held that when the contradictions do not shake the basic version of the witnesses, the court should attach undue importance to them. In this case also, the evidence placed by the prosecution appears trust worthy and nothing elicited during the cross-examination to disbelieve the same.
89. In addition to which, the admissions of P.w.1 that he did not verify whether the Sky Speed Express are the authorized persons for the purpose of export, no shipping bill was prepared by that time, before export shipping bill should be prepared. The admission of P.w.2 that he did not enquire as to how the Sky Net World Wide Express authorized Sky Speed Express to export through courier, he is the Proprietor of Sky Speed Express, they do not have Customs House Agent Licence, 71 72 CC.NO.101/2012 Ex.p.3 is issued by Sky Net Express not by them. The admissions of P.w.4 that he did not find any shipping bill during search, there was no paper presented before the Proper Officer for export do not makes the case of the prosecution fatal as this is not relevant in the light of seizure of the M.O concealed by the accused is proved.
90. Due to above reasons, the Judgement reported in AIR 1980 SC 1111 in a case between State of Maharashtra Vs. Mohmmed Yakub & Others is not applicable to the case on hand.
91. The argument of the learned counsel for accused that the alleged test of the seized material under Ex.p.1 is not proved, that in Ex.p.1 there is no reference as to nature of the test conducted, equipment used for test, the Superintendent has stated that he could not identify the substance as Ketamine Hydrochloride a Veterinary drug in Ex.p.1, P.w.5 & 6 have not spoken anything about seizing officer conducted any test or about determination of the nature of material under seizure, because of which seizure of any material much less Ketamine Hydrochloride is not established cannot be accepted for the 72 73 CC.NO.101/2012 reasons Ex.p.7 is the report given by the competent person from Laboratory, her evidence clearly discloses the drug seized is Ketamine Hydrochloride.
92. The Judgement reported in 1) AIR 1996 SC 2184 in a case between S.Gopal Reddy Vs. State of A.P., 2) AIR 1959 SC 488 in a case between Haji Mohd. Vs. State of West Bengal, 3) AIR 1977 SC 1091 in a case between Magan Biharilal Vs. State of Punjab & AIR 1960 ALL 460 in a case between Raj Kishan Vs. State are not applicable to the case on hand as all the above Judgements are in connection to handwriting expert report. But this is in connection to opinion of chemical Analyst.
93. The Judgement reported in AIR 1960 ALL 460 in a case between Raj Kishan Vs. State is also not applicable to the case on hand, as in the above referred case the Analyst who gave report is not examined, whereas the Analyst is examined as P.w.7 in this case, there is no reason to discard the evidence of P.w.7. In the Head Note-B of the Judgement reported in 2003 Crl.L.J. 356 relied upon by the learned counsel for prosecution, it is held where officer of the FSL had no interest in concocting report against accused, said report is admissible. In this case, it 73 74 CC.NO.101/2012 is not the case of accused that the Analyst who gave report that the drug sent for analysis is ketamine hydrochloride had any interest in giving report against accused.
94. It is the arguments of accused that both Notification No.67 (RE-2007) dated:22.12.2007 & Notification dated:10.02.2011 are not applicable and not proved, the Notification No.67/2007 dated:27.12.2007 has put only restriction to Ketamine, not to Ketamine Hydrochloride. Even if it is taken that the accused was exporting Ketamine Hydrochloride, it is not an offence, the Judgement relied upon by prosecution in a case between N.K.Jawahar Ali Vs. State of Tamil Nadu in HCP No.523, 640 & 711/2009 is not applicable to the case on hand as the said Judgement is passed while dealing with detention order which is separate from a trial. It is also argument of the accused counsel that the Judgement in W.P.No.26551 & 26552/2010 in a case between S.P.Raja Pandian Vs. Senior Intelligence Officer dated:7.6.2011 relied upon by the prosecutor is also not applicable to the case on hand as the findings relating to Ketamine & Ketamine Hydrochloride as laid down in the said 74 75 CC.NO.101/2012 Judgement are while dealing with adjudication for bail and not on merits.
95. But the argument of the learned counsel in this regard cannot be accepted because the Judgements relied upon by him i.e., 2014 SAR (Criminal) 176 is not applicable to the case on hand as facts & circumstances are different. In the above- referred case, the accused/appellant was hiding a mobile phone in his turban & a charger in his shoe, he was not a prisoner on the date of offence & as per the Punjab Jail Manual the mobile phone & charger were not the prohibited articles as on the date of offence. The amendment to the Prison (Punjab Amendment) Bill 2011 amended with Sec.52-A which made possession of mobile phone by prisoner & supplying such phones by any person an offence with effect from 08.3.2011 by a notification. But FIR was dated:24.09.2009 it was held that the notification will not have retrospective effect. But in the present case, the notification was not on the basis of any amendment. In the notification of the Year 2007, Ketamine was prohibited, in the notification of the year 2011, Ketamine Hydrochloride prohibited with retrospective effect. Here it is 75 76 CC.NO.101/2012 proved ketamine Hydrocholoride and Ketamine are one and the same. So, applying of subsequent notification retrospectively will not affect any body in any way. In the Judgement reported in 2009 SCC 490 it is held that the amendment in respect of punishment do not applicable to pending cases & it will not have retrospective effect. But in the present case, the notification was not on the basis of any amendment. In the notification of the Year-2007, Ketamine was prohibited in the notification of the Year-2011, Ketamine Hydrochloride prohibited with retrospective effect. Here it is proved ketamine Hydrocholoride and Ketamine are one and the same & applying subsequent notification retrospectively will not affect any body in any way. As same in the Judgement reported in (2006) 6 SCC 289, it is held that the plain reading of the amended statute shows that it is retrospective effect. This is in connection to amendment to Bombay Village Panchayat Act, 1958 - Sec.141(1) (J.2) disqualify the Addl. Collector to hold the said post. But the facts & circumstances of the present case are different.
96. The Judgement reported in 2000 SC 811, it is held that - 76 77 CC.NO.101/2012
"38. The position is well known that at common law, the normal effect of repealing a statute or deleting a provision is to be obliterate it from the statute book as completely as if it had never been passed, and the statute must be considered as a law that never existed To this Rule, an exception is engrafted by the provisions of Section.6(1). If a provision of a statue is unconditionally omitted without a saving clause in favour of pending proceedings all actions must stop where the omission finds them, and if final relief has not been granted before the omission goes into effect, it cannot be granted afterwards. Savings of the nature contained in section.6 or in special Acts may modify the position. Thus, the operation of repeal or deletion as to the future and the past largely depends on the savings applicable. In a case where a particular provision in a statute is omitted and in its place another provision dealing with the same contingency is introduced without a saving clause in favour of pending proceedings them it can be reasonably inferred that the intention of the Legislature is that the pending proceeding shall not continue but a fresh proceeding for the same purpose may be initiated under the new provision.
39. In the present case, as noted earlier. Section.6 of the General Clauses Act has no application. There is no saving provision in favour of pending proceedings. Therefore, action for realization of the amount refunded can only be taken under the new provision in accordance with the terms thereof.
40. The further question that arises for consideration in this connection is whether the Notification No.677/77, dated:6.8.77 by which Rule.10 was deleted contained any provision for continuance of the proceedings already initiated and whether Act.25 of 78 which introduced Section.11-A of the Central Excise Act, adopted the legal device of creating a fiction by virtue of which a proceedings under Rule.10 could be deemed to be a proceeding u/s.11A of the Act. If such was the position then it could be argued that the proceedings initiated when old Rule.10 was in force could be continued on the strenght of the clause of the notification by which the said Rule was omitted and substituted by a new Rule which in turn was substituted by Section.11-A of the Act.
41. From the contents of the provisions in the Rules it is clear that it did not contain any saving clause for continuance of the proceeding initiated under the Rule which was deleted/omitted. There is also no provision in Section.11-A or in any other Section of the Act saving the proceeding initiated under the deleted/omitted provision. The consequential position that th follows is that the proceeding lapsed after 6 August, 1977 and any order passed in the proceedings thereafter is to be treated as non est. In case the notice was issued after section.11-A was introduced in the Act, the proceedings will continue and will not be affected by this decision. All the cases are disposed of on the terms aforesaid. No costs."77 78 CC.NO.101/2012
which is with different facts and circumstances of this case. On the other hand, W.P.No.26551 & 26552/2010 are with the same set of facts & circumstances & same question of law was for consideration wherein it is held as follows:
"12. I respectively submit that Ketamine Hydrochloride is an item prone for smuggling out of India which fact emerges from the number of seizures effected by DRI in the past. Ketamine Hydrochloride is a chemical compound of Ketamine having an identical effect as that of Ketamine and more stable than Ketamine and Ketamine can be retrieved by reverse chemical process. It is because its abuse results in what are described as "out of body" or near death" experiences; that the abuse of Ketamine has been spreading rapidly in the "rave party" scene in East & South East Asia and also in Europe and in the United States; that for the said illicit purpose of abuse by youths, Ketamine Hydrochloride is being smuggled out of India which not only spoils the youth thereby the society as a whole but also will cause strain in the International relationship between sovereign States which the law enforcing agencies in India strive to prevent and offences thereto entails severe punishment in countries like Malaysia, Singapore, Indonesia, etc., extending upto 20 years."
Thus, I hold that the decisions laid down in W.P.No.26551 & 26552/2010 are applicable to the case on hand.
97. The argument of the learned counsel for the accused that the statement u/s. 107 & 108 of the Customs Act i.e., Ex.p.4 cannot be relied upon as it was recorded on forcing threat, his signatures have been taken forcibly, the prosecution has not proved that the accused has given such statement and adducing any independent evidence for corroborating the same.
78 79 CC.NO.101/2012
98. But this argument cannot be made applicable because as held in the Head note B & C in the judgement reported in (1997) 3 SCC Page No.721 in a case between K.I.Pavunny Vs. Assistant Collector (HQ) Central Excise Collectorate, Cochin it is held that the Customs Officer recording the statement of a person who is suspected of having committed an offence under the Act although not a police Officer, is an authority within the meaning of S.24 of Evidence Act, however, a confessional statement recorded by reason of statutory compulsion or given voluntarily by the accused pursuant to his appearing against summons or on surrender cannot be said to have been obtained by threat, inducement or promise, Hence, is admissible in evidence of prosecution u/s.135 of the Customs Act or other relevant statues, such a confessional statement although subsequently retracted, if on facts found voluntary and truthful can form the exclusive basis for conviction, not necessary that each detail in the retracted confession be corroborated by other evidence. Here it is made clear the evidentiary value of statement u/s.108 of the Customs Act is that it is admissible without corroboration. Though, the counsel 79 80 CC.NO.101/2012 for accused has cross examined the witnesses particularly P.w.1 who has recorded the statement u/s.108 of the Customs Act, not posed any question as to statement u/s.108 of the Customs Act is recorded by using threat and signature of accused is obtained forcibly. There is no evidence showing that such force is used and that recording of the statement u/s.108 of the Customs Act is not voluntary. In the statement of accused under Sec.108 of the Customs Act the accused has admitted the guilt.
99. The Judgements reported in 2013 SAR (Criminal) 549 in a case between Sunil Kundu & Anr., Vs. State of Jharkand, 2014- TIOL-85-SC-FEMA in a case between A.Tajudeen Vs. Union of India are not applicable to the case on hand as the facts & circumstances of the above referred cases & present case are different.
100. As to the arguments of the accused counsel that Ex.p.8 is the adjudication order cannot be made applicable to the Criminal proceedings, the prosecution has to prove their case independently before this case, the prosecution has examined as many as seven witnesses including panch witnesses and 80 81 CC.NO.101/2012 produced as many as nine documents to prove their case independently and have proved.
101. In the Judgement reported in Cr.A.No.1698/2006 - K.Gunavela Vs. C.B.I ACB, Bangalore, it is held that the enquiry proceedings & trial proceedings are all different proceedings, so merely marking of the enquiry proceedings, the trial court are not acted upon. But, in the present case, the prosecution have examined all the witnesses. They have taken adjudication proceedings as only a supporting document, they have not relied upon Ex.p.8 on whole. So, the above said Judgement is not applicable to the case on hand.
102. In case of P.Jayappan Vs. S.K.Perumal , AIR 1984 S.C., 1693, of course, it is held that the result of a proceedings under the Act would not be binding on the criminal court on the evidence placed before it. But, in the present case, as I have already said above, the prosecution has placed evidence independently and it is not their case that the court should rely upon adjudication proceedings and pass Judgement.
103. He has further argued that in the statement u/s.313 of Cr.P.C., before this court, the accused never admitted any 81 82 CC.NO.101/2012 facts, he has parabolized his contention defence by way of cross-examination of witnesses.
104. As to the argument of the learned counsel for accused that the sanction is not proved, it is true that the prosecution has not examined sanctioning authority who wined Ex.p.9 sanction order. On the other hand, the prosecution has proved their case beyond all reasonable doubt in respect of offence under Sec.135(1)(b) of the Customs Act. With this, I answer point No.1 in partly affirmative.
105. Point No.2: In view of my findings on Point No.1, I proceed to pass the following order.
ORDER Acting u/s.248(1) of Cr.P.C., the accused is acquitted for the offence punishable u/s.135(1)(a) of the Customs Act, 1962.
Acting u/s.248(2) of Cr.P.C., the accused is convicted for the offence punishable u/s.135(1)(b) of the Customs Act, 1962.
To hear regarding sentence.
(Dictated to the Stenographer, directly on computer, typed by her corrected and then pronounced th by me, in open court on this the 19 day of March 2016) PRESIDING OFFICER.
82 83 CC.NO.101/2012 ORDERS ON SENTENCE Heard on sentence of accused & his counsel, both submits that they intending to prefer appeal, they are aggrieved by the Judgement. Taking into consideration, the facts & circumstances of the case, I proceed to pass the following:
ORDER The accused is sentenced to under go imprisonment for 3 years & he shall pay fine of Rs.50,000/-, in default to under go S.I. for further one year for the offence punishable u/s.135(1)(b) of the Customs Act, 1962.
Mos.1 to 4 be returned to the complainant for disposal in accordance with law after appeal period.
(Dictated to the Stenographer directly on computer, typed by her, corrected and then pronounced th by me, in open court on this the 19 day of March 2016. ) PRESIDING OFFICER.
ANNEXURE:
ON BEHALF OF THE COMPLAINANT:
Witnesses:
P.w.1 B.S.Manjunath, P.w.2 S.Surendra Kumar, P.w.3 N.Goutham, P.w.4 Srinivas Prasad K.V., P.w.5 Harish C., P.w.6 Prasad, P.w.7 Smt.M.Thanigaikarasi.83 84 CC.NO.101/2012
Documents:
Ex.p.1 Mahazar, Ex.p.1(a) Sig. of P.W.1, Ex.p.1(b) Sig. of Accused, Ex.p.1(c) Sig. of Goutham, Ex.p.1(d) Sig. of Harish, Ex.p.1(e) Sig. of Prasad, Ex.p.1(f) Sig. of P.w.4, Ex.p.2 Invoice, Ex.p.2(a) Sig. of P.w.1, Ex.p.2(a) Sig of P.w.3, (Number repeated) Ex.p.2(b) Sig. of Accused, Ex.p.2(c) Sig. of Goutham, Ex.p.2(c) Sig. of Prasad, (Number repeated) Ex.p.2(d) Sig. of Harish, Ex.p.3 Receipt, Ex.p.3(a) Sig. of P.w.1, Ex.p.3(b) Sig. of Accused, Ex.p.3(b) Sig. of P.w.3, (Number repeated) Ex.p.3(c) Sig. of Goutham, Ex.p.3(d) Sig. of Harish, Ex.p.3(e) Sig. of Prasad, Ex.p.4 St. of Pradeep, Ex.p.4(a) Sig. of P.W.1, Ex.p.4(b) Sig. of Pradeep, Ex.p.5 St. of Goutham, Ex.p.5(a) Sig. of P.w.1, Ex.p.5(a) Sig. of P.w.3, (Number repeated) Ex.p.5(b) Sig. of Goutham, Ex.p.6 St. of Shiva Subbaiah, Ex.p.6(a) Sig. of P.W.1, Ex.p.6(b) Sig. of Shiva Subbaiah, Ex.p.7 Laboratory Report, Ex.p.7 Further St. of Accused, (Number repeated) Ex.p.7(a) Sig. of P.w.7, Ex.p.7(b) Sig. of Joint Director, Ex.p.8 Adjudication Order, Ex.p.9 Sanction order, Ex.p.10 Complaint, Material Objects:
Mo.1 Kora Cloth Pack, Mo.1(a) Sig. of Harish, Mo.1(b) Sig. of Prasad, Mo.1© Sig. of Accused, Mo.2 Carton Box, Mo.2(a) Sig. of Harish, Mo.2(b) Sig. of Prasad, Mo.2© Sig. of Accused, Mo.3 Cut Pieces of Diesel Brand 7 Bags, 84 85 CC.NO.101/2012 Mo.4 Remained sample received from Customs House Laboratory, Chennai, Mo.4(a) Sig. of Harish, Mo.4(b) Sig. of Prasad.
Mo.4© Sig. of Accused, Mo.4(d) Sig of N.Goutham, Mo.4(d) Sig. of P.w.7. (Number repeated) ON BEHALF OF THE ACCUSED :
Witnesses & Documents: Nil.
(PUSHPAVATHI V) PRESIDING OFFICER, SPL.COURT FOR ECONOMIC OFFENCES, BANGALORE.85