Bangalore District Court
Stanley Pradeep Devanesan Bethel vs Deputy Commissioner Of Customs on 10 April, 2019
IN THE COURT OF THE LXIV ADDL.CITY CIVIL & SESSIONS
JUDGE (CCH-65) AT BENGALURU.
Dated this 10th day of April 2019
-: P R E S E N T :-
Sri. RAJESHWARA,
B.A., L.L.M,
LXIV ADDL.CITY CIVIL & SESSIONS JUDGE,
CCH-65, BENGALURU CITY.
CRIMINAL APPEAL No.437/2016
BETWEEN:-
APPELLANT/ Stanley Pradeep Devanesan Bethel,
No.136, Opp. Nokrth Woods,
(ACCUSED - IN Cauvery Nagara,
LOWER COURT) : Vardharapalya,
Hennur Bande,
Bengaluru-560 043.
(By Sri. Kiran S. Javali, Shivaji H.Mane,
Advocates)
Vs.
RESPONDENT/ Deputy Commissioner of Customs,
Customs (Legal),
(COMPLAINANT - C.R.Buildings, P.B.No.540.00,
IN LOWER COURT) : Queens Road,
Bengaluru-560 001.
(By Sri.K.M.M., Advocate)
2 Crl.A.No.437/2016
JUDG MENT
The appellant filed this Criminal Appeal U/s.381 of Cr.P.C.,
being aggrieved by the judgment of conviction and order of
sentence dated 19.3.2016 passed in C.C.No.101/2012 on the file
of The Special Court For Economic Offences, Bengaluru (herein
after referred as impugned judgment and order).
2. Parties to this appeal shall be referred to as per their
ranking before the trial court for the purpose of convenience and
for better appreciation of their contentions.
3. In the memorandum of appeal, appellant submitted
that, trial court has failed to notice that the prosecution failed to
establish any of the ingredients of the charges framed against the
accused. Court below grossly erred in convicting and sentencing
the appellant which is entirely opposed to the facts and
circumstances of the case on record. Trial court grossly erred in
not applying the correct principle of law and its position relating
to various aspect of the matter in question. Trial court failed to
notice that, ingredients of the charges framed are not
3 Crl.A.No.437/2016
established. Trial court erred in not appreciating the decision of
Hon'ble Supreme Court of India and Hon'ble High Court of
Karnataka, Bengaluru. Impugned judgment and order has gone
beyond the scope of the charge framed on 2.12.2014. Trial court
failed to appreciate the scope of Section 211 of Cr.P.C. Trial court
failed to notice that, prosecution failed to establish specific
contention alleged against the accused. Seizure and deposition
of Pw.1, 3 to 6 contradicting each other. Pw.5 and Pw.6 are not
independent witnesses. Alleged seizure made in this case is not
proved. Even then trial court held that, possession of contraband
article with the accused had been established. Trial court failed
to appreciate the fact that, the alleged place where search was
contended is not in a customs area. No material produced to
show that, accused made an attempt to export Ketamine
Hydrochloride. Pw.1 has taken witness for seizure mahazar who
are present working in the office of the customs department..
Discrepancies in the panchanama, evidence of witnesses not
considered by the trial court. Alleged seizure made in a courier
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office at Bazaar Street, Ulsoor, Bengluru, which his not a customs
area notified U/s.7 of the Customs Act. Allegation of attempt to
export is not proved. Hence, punishment U/s.135(1)(a) and (b)
of Customs Act is not maintainable. Trial court failed to
appreciate the admissions elicited in the cross-examination of
Pw.1 to Pw.3 regarding compliance of Section 50 of The Customs
Act.
4. Notification dated 10.2.2011 does not contain
"Ketamine Hydrochloride " or any preparation of such substance
or material. The said notification does not disclose that, the same
have retrospective effect. Notification No.67/2007 dated
27.12.2007 has to be restricted of Ketamine and not on material
substances relating to Ketamine. Hence, reliance on the
notification No.67/2007 with respect to being a restricted item is
not applicable to the case on hand.
5. Prosecution failed to prove the contents of
Ex.P.7/Laboratory Report seizing of alleged Ketamine
Hydrochloride from the actual or constructive possession of the
5 Crl.A.No.437/2016
accused persons. There are several discrepancies in the evidence
of panch witness for Ex.P.7/Laboratory Report. Material witnesses
are not examined.
6. Relaying upon the statements of the accused
recorded U/s.108 of Customs Act as per Ex.P.6 dated 19.10.2010
is opposed to the settled principle of law. Ex.P.7 cannot be
considered as the same has got heavy doubt. Impugned order
suffers from error due to non-examination of the notification
whether the said notification is having prospective or
retrospective effect. Adjudicating order is not admissible in
criminal proceedings. Officer, who issued sanction to prosecute
as per Ex.P.9 has not been examined before the court. As the
accused acquitted for the offences punishable U/s. 135(1)(a) of
Customs Act, convicting for the offence punsihble U/s.135(1(b)
of Customs Act is not maintainable. For the aforesaid reasons,
appellant prayed to set aside the impugned judgment and order
of conviction passed by the trial court.
6 Crl.A.No.437/2016
7. Along with memorandum of appeal, impugned
judgment and order of conviction passed by the trial court, entire
order sheets, depositions of witnesses, exhibited documents are
filed.
8. Respondent appeared through his counsel.
9. Records from the Lower court were called for
reference in this Appeal.
10. Heard arguments.
11. Now, following are the points arising for
determination:-
1. Whether complainant proved beyond
reasonable doubt that, accused/appellant
has committed an offence punishable
U/s.135(1)(b) of Customs Act?
2. Whether in the light of evidence and
material brought before the court, trial
court is justified in convicting
accused/appellant for the offence
punishable U/s.135(1)(b) of Customs Act
and sentencing him for the said offence?
3. Whether impugned judgment and order
of sentence called for interference in this
appeal?
7 Crl.A.No.437/2016
4. What Order?
12. It is answered for the aforesaid points as under:-
Point No.1: In the Affirmative
Point No.2: In the Affirmative
Point No.3: In the Negative
Point No.4: As per final order below,
for the following:-
REASONS
13. POINTS NO.1 to 3:-
Brief facts of the complainant 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, Bengaluru, he is a public servant, he has filed
complaint on his official capacity, he is authorized to file
complaint by the Commissioner of Customs, Bengaluru-1, as per
the sanction order dated 8.8.2012 to prosecute the accused.
14. On 10.3.2010 at about 19.40 hours when the team
of officers of the Headquarters Preventive Unit, Customs,
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Bengaluru (HPU) on credible information visited the Courier Office
viz., Sky Speed Express, situated at D.No.1, and 2 Kaliamman Koil
Street, Next to Bata Show Room, Bazaar Street, Ulsoor,
Bengaluru, accused how is resident of Bengaluru and holder of
Indian Passport bearing No.E3226571 was attempting to export
about 3.4 k.gs. 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)(b) of Customs Act
1962. Hence, complainant filed complaint.
15. Perused the entire order sheet, memo of citations,
complaint U/s.200 of Cr.P.C., U/s.200 of Cr.P.C., for the offence
punishable U/s.135(1)(b) of Customs Act, charge, evidence of
Pw.1 to 7, ingredients of the exhibited documents, statement of
accused recorded U/s.313 of Cr.P.C. and judgment passed by the
Special Court For Economic Offence, Bengaluru.
16. So far as appreciation of evidence is concerned,
Pw.1/B.S.Manjunath, Superintendent Central Excise Customs,
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Mysore deposed with respect to conducting ride on the basis of
credible information, seizing Ketamine Hydrochloride in the
courier office and Sky Speed Express, Ulsoor, Bengaluru, which
was in the conscious possession of the accused persons,
produced to export the same through courier to USA, collecting
samples after testing the same, drawing panchanama in the
presence of panch witnesses, seizing/remaining Ketamine
hydrochlorides, collecting receipts, documents from the courier
office. Further, Pw.1 deposed that during the course of
investigation, he recorded statements of the accused and
witnesses. Further, Pw.1 deposed that, he send 2 samples to
Customs House Laboratory, Chennai for examination and received
Certificate as per Ex.P.7. An adjudication was conducted and
fine of Rs.31,00,000/- was imposed on the accused. He applied
for sanction to prosecute the accused and obtained sanction as
per Ex.P.8. Thereafter, he filed complaint U/s.200 of Cr.P.C.,
against the accused as per Ex.P.10. He identified seizure
panchanama as per Ex.P.1, his signature in the said panchanama,
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invoice seized under panchanama as per Ex.P.2. He identified the
statement of accused recorded by him as per Ex.P.4.
17. Pw.1 further deposed with respect to taking two
samples out of the seized contraband ketamine hydrochloride and
sending the same to Customs House Laboratory, Chennai for
examining, receiving the Test Report from the said laboratory. He
identified the samples collected. He identified the report received
from the Customs House Laboratory, Chennai, confirming the
sample as ketaminie hydrochloride. In the cross-examination,
there are some admissions elicited by the counsel for the accused
persons with respect office boys working in the department of
Customs as panch witnesses present at the time of conducting
seizure panchanama Seizing contraband article from the
possession of the accused. There are some admissions with
respect to location of the courier office, which is not within the
notified customs area. There are some admission with respect to
dictating seizure panchanama and preparing the same. There
11 Crl.A.No.437/2016
are certain discrepancies in the evidence adduced by the Pw.1
and to the contents of Ex.P.1/seizure panchanama.
18. Pw.2/Surendra Kumar is the Investigating Officer of
this case. in his evidence he deposed that, he recorded further
statement of accused No.1 as per Ex.P.7. Pw.5/ Harish and
Pw.6/Prasad are two witnesses present as panchas at the time of
preparing Ex.P.1/panchanama, seizing the Ketamine hydrochloride
from the possession of the accused and drawing samples. Pw.5
and Pw.6 deposed in accordance with the contents of
Ex.P.1/panchanama. They identified their signatures in the said
panchanama. They identified signatures affixed on the cover of
Cora cloth used for seized for Mo.1 to Mo.4.
19. Pw.3 is the owner of Sky Speed Express where the
alleged ride conducted on the basis of credible information, seized
ketaminie hydrochloride from the possession of the accused. Pw.3
deposed corroborating to the contents of Ex.P.1/seizure
panchanam corroborating with the evidence of complainant, other
customs officers and two panch witnesses.
12 Crl.A.No.437/2016
20. Pw.4/Srinivas Prasad, Superintendent of Customs
deposed in accordance with the evidence adduced by Pw.1.
21. Pw.7/Smt.M.thanigaikarasi, Assistant Commissioner,
Excise Customs House, Chennai deposed about the examination
of the samples sent by Pw.1 for examination. She identified the
certificate issued by the laboratory. She opined that, samples sent
for examination contained ketaminie hydrochloride.
22. Pw.1, Pw.2, Pw.4, are officers of the customs
department. Pw.1, 2 4 cross-examined by the accused side. In
the cross-examination, it is suggested that, the place of seizure
was not within the purview of customs notified area. Almost all
Pw.1 to Pw.3 admitted the aforesaid suggestion. Second question
put by the accused side to these witnesses that, Pw.5 and Pw.6
said to be independent panch witnesses to the seizure
panchanama/Ex.P.1 are working under customs department. The
aforesaid suggestion admitted by the Pw.5 and Pw.6 in their
cross-examination.
13 Crl.A.No.437/2016
23. Pw.3/ N.Goutham is the Proprietor of Sky Speed
Express Courier office. He admitted that, he do not have custom
house agent license, courtier licencse to export. But this witness
explained that, he had an agreement with Sky Net World Wide
Express. He admitted typing Ex.P.1/mahaza as dictated by
custom officer.
24. Pw.5 and Pw.6 office boys admitted that, they were
working in the customs office from 2004 to 2013.
25. Pw.7/ Smt.M.thanigaikarasi admitted in her cross-
examination that, laboratory where the samples tested is part of
customs department. She do not know whether ketaminie
hydrochloride and ketamine have the same chemical properties.
She do not know what is chemical name of Ketamine and
ketaminie hydrochloride. She admitted that, Ex.P.7/Report
containing a note that, purity of the sample could not be
determined for want of certified reference standard and facilities.
Further, she admitted that, if certified reference standard was
available, she could have get better result.
14 Crl.A.No.437/2016
26. Charge framed in this case is as follows;
" On 10.03.2010 at about 19.40 hours when the
team of officers of the Headquarters Preventive Unit,
Customs, Bengaluru (HPU) on credible information,
present at Courier Office viz. Sky Speed Express,
situated at D.No.1 & 2, Kaliamman Koil Street, Next to
Bata Show Room, Bazaar Street, Ulsoor, Bengaluru,
accused resident of Bengaluru, holder of Indian
Passport bearing No.E3226571 found attempting to
export about 3.4 k.gs of Ketamine Hydrochloride which
was prohibited to exports by confiscating the same in
cream coloured and grey coloured Executive bags and
thereby accused has committed an offence punishable
U/s.135(1)(b) of Customs Act, 1962."
27. Offence alleged in the charge against the accused are
Section 135(1)(a) and 135(1)(b) of Customs Act 1962.
Section 135(1)(a) of Customs Act states as under;
(a) is in relation to any goods in any way
knowingly concerned in misdeclaration of value or in
any fraudulent evasion or attempt at evasion of any
duty chargeable thereon or of any prohibition for the
15 Crl.A.No.437/2016
time being imposed under this Act or any other law for
the time being in force with respect to such goods; or
28. Section 135(1)(b) of Customs Act states as
under;
(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; or
To prove the ingredients of Section 135(1)(a) of Customs
Act 1962, offences alleged to have been taken place within the
customs notified area. In this case prosecution not succeeded to
prove that the alleged incident have taken place within the
notified area. In the cross-examination of prosecution witnesses,
it is admitted that, the alleged place of seizure of contraband
ketamine hydrochloride was not the place coming under the
notified customs area. Taking the said fact into consideration,
16 Crl.A.No.437/2016
Learned Trial Judge acquitted the accused for the offences
punishable U/s.135(1)(a) of Customs Act 1962.
29. So far as the offence punishable U/s. 135(1)(b) of
Customs Act 1962 is concerned, recovery of contraband ketamine
hydrochloride from the possession of the accused is necessary to
prove the offence against the accused persons. It is just and
essential to consider the point whether prosecution proved
beyond reasonable doubt that, on the date of incident as alleged
in the charge, accused had in his conscious possession
contraband article like ketamine hydrochloride and the same was
seized by the complainant. In the evidence of Pw.1, complainant
B. Manjunath described the procedure followed to conduct raid,
seizure made under Ex.P.1/panchanama. Pw.1 identified his
signature on the panchanama, identified his signatures on the
samples drawn. He identified the signatures of the accused on
Ex.P.1/panchanama. He identified the signatures of one witness
Goutham, panch witnesses Harish and Prasad on the said
panchanama. Evidence of Pw.3/Goutham, Pw.5/Harish,
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Pw.6/Prasad corroborating with the evidence of Pw.1. Hence,
drawing Ex.P1/mahazar on the spot in the presence of accused is
proved. So far as seizure of contraband ketamine hydrochloride
from the possession of accused is concerned Goutham, Harish,
Prasad identified their signatures on the chit pasted on the kora
cloth pack used for seizure of Mo.1 to Mo.4. Further Pw.1
identified 3.370 k.gs seized ketamine hydrochloride as Mo.1, 7
empty diesel brand executive bags as mo.2, cut pieces of diesel
brand 7 bangs marked as Mo.3, remained sample received from
Customs House Laboratory, Chennai at Mo.4.
30. Pw.1/Manjunath, Pw.6/Prasad, Pw.5/Harish
identified Mo.1 to Mo.4.
31. Evidence of Pw.1 is corroborating with the evidence
of Pw.2/ Customs officer, who was present at the time of raid and
evidence of Pw.1 corroborating with the evidence of
Pw.3/Goutham, Pw.4/Srinivas Prasad, Pw.5/Harish, Pw.6/Prasad.
18 Crl.A.No.437/2016
32. In the cross-examination Pw.1 to Pw.6 accused side
elicited certain admissions with respect to discrepancies in the
evidence of Pw.1 to 6. Further certain admissions elicited to deny
the independent character of Pw.5 and Pw.6/panch witnesses to
the seizure panchanama at Ex.P.1
33. It is pertinent to note that, article seized in this case,
allegation against the accused is possession of ketamine
hydrochloride without having No Objection Certificate from the
Department of Narcotic Drugs. It is not in dispute that, ketamine
hydrochloric is such substance which is injurious to the human life
if taken other than medical treatment.
34. Whether prosecution proved the possession of the
said ketamine hydrochloride by the accused at the time of
conducting raid has to be tested with the provision of Customs
Act.
35. Entire reading of evidence adduced by Pw.1 to
Pw.6, ingredients of the seizure panchanama, prosecution proved
19 Crl.A.No.437/2016
beyond reasonable doubt that, the accused was in possession of
contraband article ketamine hydrochloride, which is a substance
restricted and prohibited to export without obtaining No Objection
from department of Narcotic Drugs. Ketamine hydrochloride
seized from the possession of the accused which is liable for
confiscation as per Section 113 of Customs Act 1962. In the cases
of possession of contraband articles under Customs Act,
presumptions has to be drawn which states as follows;
138A. Presumption of culpable mental state.--
(1) In any prosecution for an offence under this
Act which requires a culpable mental state on the part
of the accused, the court shall presume the existence of
such mental state but it shall be a defence for the
accused to prove the fact that he had no such mental
state with respect to the act charged as an offence in
that prosecution. Explanation.--In this section,
"culpable mental state" includes intention, motive,
knowledge of a fact and belief in, or reason to believe,
a fact.
(2) For the purpose of this section, a fact is said
to be proved only when the court believes it to exist
20 Crl.A.No.437/2016
beyond reasonable doubt and not merely when its
existence is established by a preponderance of
probability.
It is to be noted that, it is the customs officer who on the
basis of credible information recovered contraband ketamine
hydrochloride from the possession of the accused in Courier
shop, when accused attempting to export the same to a Foreign
Country. Complainant customs officer seized contraband ketamine
hydrochloride along with receipts, documents from the
possession of accused.
36. Statement of the accused recorded by the customs
officer can be admitted in evidence in trial as per section 108 of
Customs Act. Even though there are certain minor discrepancies,
contradictions in the evidence of Pw.1 to 6 improvement and
omissions in the evidence of Pw.1 to Pw.6, on the whole the
version of the prosecution alleged against the accused is
trustoworthy, believable. Stand taken by the accused in the cross-
21 Crl.A.No.437/2016
examination as defence on the ground of technicalities, unable to
establish reasonable doubt on the case of the prosecution.
37. Unlike cases registered by the police under the
provisions of Cr.P.C., for offence under the provisions of I.P.C.,
offence under Special Acts has to be looked into when seizure is
made by following special procedures required to be followed by
the Investigating Officer, while conducting raid, seizure of the
contraband ketamine hydrochloride from the possession of the
accused. Most important factor to be considered here in this case
is possession of large quantity of ketamine hydrochloride by the
accused persons. Burden is on the accused to tender acceptable
explanation with respect to intention, motive, knowledge of the
fact and reason to believe about possession of seized ketamine
hydrochloride. No where in the course of investigation of trial,
accused put forward any such defence like absence of mental
state to possess, export ketamine hydrochloride.
22 Crl.A.No.437/2016
38. Further, sanction for prosecution which is a
condition precedent, obtained from the authorized officer.
Objection raised by the accused side is that sanction is not proved
as the person granted sanction to prosecute, has not been
examined as witness in this case. However, Ex.P.9/Sanction
Order is speaking order. Bare reading of Sanction order/Ex.P.9
made it clear is that, after applying mind the sanction was
accorded to prosecute the accused in this case.
39. As soon as seizure of contraband ketamine
hydrochloride is proved, court has to draw presumptions with
respect to culpable mental status of the accused unless it is
rebutted by the accused side. In this case. Accused side is totally
depending upon the legal lacunas, weaknesses in the case of the
prosecution as defence. To establish those facts to get benefit of
doubt, accused side relied upon citations on the point that mere
marking of mahazar and statement of accused is not sufficient to
prove its contents and it has no evidentiary value. Here in this
case Ex.P.1/seizure mahazar proved beyond reasonable doubt
23 Crl.A.No.437/2016
that, contraband ketamine hydrochloride seized from the
possession of the accused along with documents. Statement of
accused carry special evidentiary value as per Section 107 and
108 of Customs Act. Under Section 24 of Indian Evidence Act
confession statement given by the accused in the custody of
police officer is not admissible. However, it is very much clear
that, U/s.107 and 108 of Customs Act permit to prove the
contents of statement of the recorded by the Customs Officer. No
acceptable exaplnation tendered by the accused at the time of
recording his statement U/s.313 of Cr.P.C., about allegation of
possession of contraband ketamine hydrochloride at the time of
raid conducted by the customs officers. No acceptable
explanation tendered by the accused at the time of recording his
statement U/s.313 of Cr.P.C., about evidence adduced by the
Pw.1/complainant panch witnesses to Ex.P.1/mahazar owner of
Courier House about possession of contraband ketamine
hydrochloride by the accused person.
24 Crl.A.No.437/2016
40. Accused side relied upon citation of judgments on
the points that, no independent witness from locality were
examined to prove the contents of seizure panchanama, expert is
not reliable material witnesses not examined, notifications are not
applicable, trial court not appreciated the evidence properly
which caused miscarriage of justice. With due respect ratios laid
down in the citation of judgment relied upon by the accused side
is not applicable to the facts and circumstances of the case on
hand. Proved allegation against the accused is possessing the
contraband article under NDPS Act which is not easily available
material, for which accused failed to tender satisfactory
explanation. Minor discrepancies bound to occur in all trials,
proceedings. There is no two views found with respect to proof of
allegation of possession of ketamine hydrochloride, leveled
against the accused in the charge framed. There cannot be any
other view apart from the view taken by the trial court to hold
that the accused is punishable U/s. 135(b) of Customs Act.
25 Crl.A.No.437/2016
41. Compared the reasons assigned by the trial court
with the allegations made in the memorandum of appeal. There
are no acceptable grounds in the memorandum of appeal to
interfere into the well reasoned legally sustainable impugned
judgment and order of conviction.
42. So far as quantum of punishment is concerned,
awarded punishment by the trial court to the accused is to
undergo imprisonment for 3 years and he shall pay fine of
Rs.50,000/-, in default to undergo S.I. for further one year for
the offence punishable U/s.135(1)(b) of Customs Act 1962 which
is not too harsh punishment. There is no merit in the appeal.
Order under appeal is sustainable in law. Hence, interference of
this court is not necessitated. Accordingly, points No.1 and 2 are
answered in the affirmative and point No.3 in the Negative.
43. POINT NO.4 :- In view of findings on the above
points No.1 to 3, this criminal appeal is devoid of merits and
same is liable to be dismissed by confirming impugned judgment
26 Crl.A.No.437/2016
of conviction and order of sentence. Hence, following order is
made:
ORDER
Criminal Appeal filed U/s.381 of Cr.P.C., is dismissed.
Consequently, impugned judgment of conviction and order of sentence dated 19.3.2016 passed in C.C.No.101/2012 on the file of The Special Court For Economic Offences, Bengaluru is hereby confirmed.
Appellant/accused is hereby directed to appear before Trial Court to serve the sentence and to deposit the fine amount, forthwith.
Office is hereby directed to send back L.C.R. along with certified copy of Judgment, forthwith.
(Dictated to the Judgment Writer, transcribed by her, corrected and then pronounced by me in the open court on this the 10th day of April, 2019.) (RAJESHWARA) LXIV ADDL.CITY CIVIL & SESSIONS JUDGE, (CCH-65), BENGALURU CITY.