Bangalore District Court
The Deputy/Assistant Commissioner Of ... vs Sri. Jakir Munawar Khan on 13 December, 2024
KABC090001972021
Presented on : 13-10-2021
Registered on : 16-10-2021
Decided on : 13-12-2024
Duration : 3 years, 2 months, 0 days
BEFORE THE SPECIAL COURT FOR ECONOMIC
OFFENCES: AT BENGALURU
Dated this the 13th day of December 2024
:Present:
Sri. VISHWANATH C GOWDAR., B.A.L., LL.M.,
Presiding Officer,
Special Court for Economic Offences,
Bengaluru
C.C. No.130/2021
Complainant: The Assistant/Deputy Commissioner of
Customs (Prosecution),
Office of Principal Commissioner of Customs,
Airport and Cargo Complex Commissionerate,
Devanahalli,
Bengaluru - 560 300.
(Reptd. By Sri. C.K.., Spl. PP.,)
V/s.
Accused : Shri. Jakir Munawar Khan
S/o. Munawar Khan,
Aged about 34 years,
R/at. S.R. No.110, Ramtakdi,
Near Magrinbai Chawl,
Hadaspar, Pune,
Maharashtra - 411 013.
(Reptd. By Sri. BJ., Advocate)
2 C.C.No.130/2021
:JUDGMENT:
The complainant/Assistant/Deputy Commissioner of Customs (Prosecution), Bengaluru filed this complaint U/s.200 of Cr.P.C., alleging that the accused has conspired and attempted to smuggle the gold in contravention of Section 132, 135(1)(a) and 135(1)(b) of the Customs Act, 1962 (hereinafter referred as to "the Act"), the same is punishable U/s.132 & 135(1)(ii) of the Act.
2. The complainant's case in nutshell is as under:
The accused has been intercepted by the officials attached to the Customs on the basis of credible information at Customs Arrival Hall, KIAL, Bengaluru, on his arrival from Emirates Flight No.EK-568 from Dubai on 10.03.2020. The said accused on being questioned by the complainant officials, he accounted as to carrying one back pack as hand baggage as well as one marron coloured trolley bag as checked-in-baggage and not carrying any dutiable or prohibited items in the said baggages, in contravention of the Act. The officials suspecting the credence of the accused, on having conducted his search in person with the help Hand Held Metal Detector, they got beep sound near buttock area. The accused conceded regarding the concealment in his rectum and the said concealment by way of two oval shaped black packets wrapped with black coloured adhesive tape were handed over by the accused voluntarily. Thereafter, an open examination of the said two oval shaped packets, revealed regarding the existence 3 C.C.No.130/2021 of gold in the paste form mixed with chemical and unknown materials. The same being examined by the Authorized Gold Valuator, on separation of the gold from chemicals, it was found to be totally weighing 464.46 grams of 24.00 carat i.e., 99.50% purity, the value of the said gold converted into putty was found to be Rs.20,11,112/- as on the date of seizure.
3. It is the specific allegations of the complainant as to the accused has intentionally attempted to smuggle the gold in the paste form into the country without declaring to the Customs Authorities in contravention of the Baggage Rules, 2016 by concealing the said gold in his person. It is further complainant's case that, the said seizure of the gold was conducted as per the mahazar drawn at the premises of KIAL, Bengaluru and the statement of the accused in so far as his involvement has been recorded on 10.03.2020 as contemplated U/s.108 of Customs Act, thereby it has been alleged that the accused intentionally attempted to smuggle the gold by concealing in his person, by not declaring the same to the Customs Authorities and committed the offence punishable U/s.135(1)(ii) of the Customs Act. Hence, this complaint.
4. Upon filing of the complaint, cognizance of the offence punishable U/s.132 & 135(1)(ii) of the Act has been taken by dispensing the sworn statement as contemplated U/s.200(a) of the Cr.P.C. The accused being intercepted and having been produced before this court has been subsequently enlarged on bail by this court. The copies of the complaint and other 4 C.C.No.130/2021 documents have been furnished to the accused in compliance of Section 207 of Cr.P.C.
5. Thereafter, the evidence before charge was recorded as contemplated U/s.244 of Cr.P.C., and after hearing the learned Spl. PP and the counsel for the accused, the charge was framed against the accused. The same was read over and explained to the accused, he pleaded not guilty and claimed to be tried.
6. The complainant in order to substantiate the allegations set out in the compliant, got examined himself as PW-1 and got examined three witnesses as PW's-2 to 4 and got marked in all seven documents as Ex.P-1 to Ex.P-7 and got closed its side of evidence. The statement of the accused as contemplated U/s.313 of Cr.P.C., was recorded and accused denied the incriminating materials in the testimonies of the complainant witnesses and has not chosen to adduce his defence evidence in support of the contentions urged by him.
7. The compliance U/s.437(A) of Cr.P.C., was dispensed by accepting the earlier personal bond and surety furnished at the time of enlarging accused on bail.
8. Heard the arguments addressed by learned Spl. PP and counsel for the accused. The learned Spl. PP and counsel for the accused in support of their arguments have filed their written arguments. The learned Spl. PP has also filed written reply arguments on behalf of complainant Department.
5 C.C.No.130/20219. Having due regard to the complaint, evidence on record and arguments addressed by the rival parties, the following points would arise for the consideration of this court namely:
1. Whether the complainant proves beyond all reasonable doubts that, on 10.03.2020 at about 02.30 am., at KIAL, Bengaluru, the accused having arrived from Dubai in Emirates Flight No.EK-568 had attempted to smuggle the gold in the paste form mixed with chemicals by concealing the same in his person, on being weighed, the same was found to be 464.46 grams of gold valued at Rs.20,11,112/- as alleged in the complaint and thereby committed an offence punishable U/s.135(1)(ii) of Customs Act, 1962?
2. Whether the complainant further proves beyond all reasonable doubts that, on the aforesaid date, place and time, the accused has made a false declaration as to not carrying any dutiable and prohibited items, though he had knowledge regarding the concealment in his person and thereby committed an offence punishable U/s.132 of Customs Act, 1962?
3. What order?
10. The answer of this court to the aforesaid points is as under:
Point No.1: In the Negative
Point No.2: In the Negative
Point No.3: As per final order
for the following:
REASONS
11. Point Nos.1 & 2: These points are taken up for
discussion together, in order to avoid reiteration of facts, as the said points are arising out of the same incident.
6 C.C.No.130/202112. It is the case of the complainant that, the accused being the international passenger of Emirates Flight No.EK- 568 arrived on 10.03.2020 at about 02.30 am., at KIAL, Bengaluru and was found to have attempted to smuggle the gold in the paste form by concealing the same in his rectum in the two oval shaped packets and same being found to be weighing 464.46 grams of 24.00 carat of gold valued at Rs.20,11,112/- as on the said day thereby the accused has contravened the provisions of Baggage Rules 2016, consequently committed the offence punishable U/s.132 & 135(1)(ii) of Customs Act.
13 The complainant in order to demonstrate the guilt of the accused beyond all reasonable doubts, arrayed as CW-7 has got examined himself as PW-1, the said complainant has reiterated regarding the averments in the complaint as to accused being the passenger of Emirates Flight No.EK-568 and having arrived from Dubai at KIAL, Bengaluru on 10.03.2020 so also regarding the accused found to be concealing the gold paste form in his rectum in a two oval shaped packets. The said witness also accounted regarding the extracted contraband being weighed at around 464.46 grams of 24.00 carat and valued at Rs.20.11 lakhs as on the said day and the said gold being seized so also the confiscation of the said gold and penalty being imposed for the contravention as per the provisions of the Act. It is also accounted regarding authorization being given to him to prosecute the accused as per the instant complaint and also 7 C.C.No.130/2021 the prior sanction being obtained from the competent Authority.
14. In support of the said oral testimony, the PW-1 has produced and got marked seven documents as Ex.P-1 to Ex.P-7. Ex.P-1 is the complaint, signature of the witness is marked as Ex.P-1(a). The original sanction order dated 19.11.2020 is marked as Ex.P-2. Ex.P-3 is the mahazar dated 10.03.2020. Ex.P-4 is the Gold Valuer Certificate dated 10.03.2020. Ex.P-5 is the Boarding Pass. Ex.P-6 is the Order passed by Joint Commissioner of Customs, Bengaluru in original dated 30.07.2020.
15. The PW-1 has been subjected to cross-examination by the counsel for the accused, wherein, it has been categorically admitted as to there is no any specific reference in the complaint regarding the witness by his name having been authorized to lodge the complaint in the case on hand. It is conceded as to the complaint has been lodged after lapse of eight months from the date of the sanction order. It is admitted as to the Air Ticket pertaining to accused has not been produced before this court along with compliant. It is also admitted as to he has not personally witnessed the interception as well as seizure proceedings in the case on hand. The other suggestions as to the witness is not competent to lodge this complaint in the case on hand and the complaint has been filed frivolously has been denied by the witness.
8 C.C.No.130/202116. CW-1 the Superintendent of Customs, Bengaluru is examined as PW-2. This witness has also accounted regarding himself having intercepted the accused on 10.03.2020 on having found accused to have attempted to smuggle gold on having searched in his person. So also accounted regarding the weight and value of the gold as well as obtaining the Gold Valuer Certificate. The witness has also accounted regarding the mahazar being drawn in presence of two independent witnesses and accused being arrested by following due procedure, the signature of the witness in mahazar as per Ex.P-3 is marked as Ex.P-3(a).
17. The said PW-2 has been subjected to cross- examination by the counsel for the accused, wherein, he has categorically deposed as to in the case on hand there was no any credible information, the accused was intercepted during the course of general profiling of passengers. It is also elicited as to the witness not being issued with written authorization to conduct the search and arrest, so also, no any specific reference with respect to the said authorization in the complaint at Ex.P-1. The witness has pleaded ignorance regarding the names of the panchas and admitted regarding no any endorsement being found in the mahazar at Ex.P-3 regarding the contents of Ex.P-3 being explained to the panchas. It is elicited as to the witness having not investigated regarding Mr. Saleem Bai as referred by accused in his statement U/s.108 of the Act. It is also admitted as to the witness did not had any difficult to secure the independent witness other than the panchas, who are officials employed at 9 C.C.No.130/2021 Airport. That apart, the other suggestions as to the accused has been falsely implicated, though he is innocent has been specifically denied by the witness.
18. CW-2 i.e., the then Inspector of Customs, Bengaluru is examined as PW-3. The said witness has also accounted as to the having accompanied PW-2, the accused and other two independent witnesses at the time of mahazar being drawn on 10.03.2020 at Customs Area, KIAL, Bengaluru. Further, deposed regarding having typed the mahazar as per Ex.P-3 and also recorded the statement of accused at the instance of the accused at KIAL, Bengaluru on 10.03.2020. The statement of accused is marked as Ex.P-7 and his signature is marked as Ex.P-7(a).
19. PW-3 has been subjected to cross-examination by the counsel for the accused, wherein, it is elicited as to Ex.P-7 does not bears the signature of PW-2. The witness has pleaded ignorance regarding exact time of having typed the statement of accused as per Ex.P-7. The other suggestions as to the witness is deposing falsely at the instance of his superiors has been categorically denied by the witness.
20. CW-3 i.e., witness to Ex.P-3 is examined as PW-4. This witness has accounted as to on 10.03.2020 having been employed as a Loader. He has also deposed regarding the accused having arrived in Emirate Flight bearing No.568 from Dubai and during the course of search in person of accused, the concealment of gold was found in his rectum. He has 10 C.C.No.130/2021 identified the mahazar as per Ex.P-3, his signature is marked as Ex.P-3(c).
21. PW-4 has been subjected to cross-examination by the counsel for the accused, wherein, he has admitted as to he has affixed his signature on the mahazar at Ex.P-3 at the request of Customs officials and got to know regarding the concealment by the accused in his person by the officials. He has also admitted as to having not personally checked the concealment in the person of the accused.
22. The prosecution could not secure CW-4 despite coercive steps. Hence, CW-4 was dropped from being examined on behalf of the complainant vide order dated 07.02.2024.
23. The accused has not chosen to adduce his evidence in support of his contentions set out during the course of cross-examination of PW's-1 to 4.
24. The learned Spl. PP representing the complainant has vehemently argued that, the complainant has discharged the burden of demonstrating the guilt of the accused beyond all reasonable doubts and also testimonies of the complainant as well as PW's-2 and 3 i.e., the officials of the complainant Department as well as PW-4 independent witness to the mahazar very much discloses the modus operandi hatched by the accused in having attempted to smuggle the gold in the form of paste by concealing the same in his person. The learned Spl. PP has also emphasized regarding the mahazar 11 C.C.No.130/2021 and statement of the accused as per Ex.P-3 & Ex.P-7 being recorded by the officials of complainant Department so also highlighted regarding the report of the gold valuer obtained by the aforesaid officials, in so far as the quantity and quality of the seized foreign origin gold. The Spl. PP has also emphatically argued regarding the accused being intentionally having attempted to smuggle the gold in form of paste and the factum of the concealment very much strengthens the aforesaid malicious intention of the accused in having attempted to smuggle the gold into the country, by evading the duty and penalty payable to the Customs Department.
25. The Spl. PP has also placed reliance on the decision of the Hon'ble Apex Court in his written arguments reported in (1980)2 SCC 262 in Shah Gumman Mal V/s. State of Andhra Pradesh and argued as to the ratio of the said decision as to the accused having attempted to smuggle at the instance of the other person will not be any aid to the accused, to be entitled to the benefit of acquittal. He has also placed reliance on the ratio of the Hon'ble Supreme Court in Y.S. Jagan Mohan Reddy V/s. CBI, in which, the Hon'ble Supreme Court has observed that:
"Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy 12 C.C.No.130/2021 of the country as a whole and thereby posing serious threat to the financial health of the country"
26. The learned Spl. PP also relied upon the decision of the Hon'ble Supreme Court in Crl. Appeal No.649/2022 in Ms. Y V/s. State of Rajasthan, in which, the Hon'ble Supreme Court has laid down that:
"Reasoning is the life blood of the judicial system. That every order must be reasoned is one of the fundamental tenets of our system"
27. The learned Spl. PP also relied upon the decisions of the Hon'ble Supreme Court reported in AIR 1970 SC 940 in Romesh Chandra Mehta V/s. State of West Bengal , so also reported in AIR 1962 SC 276 in The State of Punjab V/s. Barkat Ram in which, the Hon'ble Supreme Court has laid down the propositions that, the Customs officers are not police officers for the purposes of the Section 25 of the Indian Evidence Act and the conviction on the basis of the statements to the Customs officers was maintainable.
28. The learned Spl. PP has highlighted the testimonies of PW's-1 to 4 on record and sought for conviction of the accused, as the alleged offence is an offence having serious ramification on the economy of the country and affecting the genuine traders in the gold.
13 C.C.No.130/202129. The counsel for the accused has emphatically argued that, the accused has been falsely implicated in the case on hand. The mahazar as per Ex.P-3 is unable to be gathered by the testimonies of PW's-2 and 3 as well as independent witness PW-4. The learned counsel for the accused has also argued regarding the very aspect of arrest and seizure of the gold in the form of paste from the custody of the accused is unable to be accepted as per the testimony of the PW-2. It has been emphasized as to the testimonies of PW's-2 to 4 are very much contrary to each other in so far as the drawing of mahazar as per Ex.P-3 so also regarding the recording of statement of accused as per Ex.P-7. It is also emphasized as to non-furnishing of flight ticket, baggage tag and other travel documents are very much fatal to the complainant's case. As seizure is followed by preparation of detention memo, this very much goes to show the instant case being planted against the accused, who is the innocent passenger it has been argued as to the accused is entitled to the benefit of doubt forthcoming in the complainant's case and accused cannot be made liable for the alleged offence, which the complainant has very much failed to establish beyond all reasonable doubts. It has been also emphasized regarding the accused not being served with the show cause notice U/s.108 of the Act and independent witness PW-4 having deposed contrary to complainant's case and the testimonies of the PW's-1 to 3 being that of the officials attached to the complainant Department very much amounts testimonies of the interested witnesses. It is emphatically stressed that Mr. Saleem Bai, who is the 14 C.C.No.130/2021 mastermind in the case on hand as referred in Ex.P-7 has not been interrogated by the Investigating Officer so also, there is no any document to show the contraband being the foreign origin. Amongst these arguments, the counsel for the accused has sought for acquittal of the accused and also filed his written arguments.
"Analysis and Evaluation of Evidence as well as contentions"
30. Having regard to the complaint, evidence on record and arguments addressed by the rival parties as well as the written arguments filed by the either parties, this court has to strictly ascertain as to the accused having been attempted to smuggle the gold in the form of paste by concealing the same in his person i.e., in his rectum and the same was very much seized by drawing the mahazar as per Ex.P-3 and the said seizure being established by the complainant to the satisfaction of the court.
31. This court is certainly bound to evaluate the testimony of PW-2 i.e., Superintendent of Customs, who has claimed to have intercepted the accused on 10.03.2020 at 02- 30 am., in the Customs Area, KIAL, Bengaluru and the said official has also claimed to have seized the gold in the paste form mixed with chemicals, which was concealed in his rectum in two oval shaped packets by drawing the mahazar as per the Ex.P-3. An anxious examination of the testimony of PW-2 more particularly the examination-in-chief and the cross- examination of the said PW-2. It is relevant to appreciate as to the testimony of the PW-2 in so far as the recovery of so called 15 C.C.No.130/2021 contraband which was attempted to be smuggled by the accused in the form of paste is unable to be gathered. The testimony of PW-2 as to there was no any authorization by his superiors to search and seize by virtue of being Proper Officer U/s.2(34) of the Act is very much contrary to the provisions of the Customs Act with respect to the search and seizure. Furthermore, the testimony of PW-3 i.e., an official, who typed the Ex.P-3 having deposed as to Ex.P-3 being typed as deposed by PW-2 and independent witnesses, so also, the testimony of independent witness PW-4 having affixed his signature at the request of the Customs officials and having got to know regarding the concealment by the accused at the instance of the officials, very much creates cloud of the suspicion as to the very official PW-2 having drawn the mahazar as per Ex.P-3 and having seized and recovered the gold from the custody of the accused.
32. Furthermore, the complainant/PW-1 having admitted regarding the flight ticket of the accused not being secured at the time of drawing mahazar, the said document not being furnished in the case on hand is certainly amounting to be substantial omission.
33. Though this court cannot assess the complainant's case solely on the basis of the statement of the accused as per Ex.P-7 which is very much covered U/s.108 of the Customs Act. The said statement as per Ex.P-7 is very much not at par with the statement as contemplated U/s.161 of Cr.P.C. The Hon'ble Apex Court in AIR 1996 SC 522 in Naresh J Sukhwani V/s.
16 C.C.No.130/2021Union of India has very much laid down that the statement U/s.108 of the Customs Act is very much piece of evidence collected by the customs officials. Having regard to the relevance and importance has laid down by the Hon'ble Apex Court in so far as the statement recorded U/s.108 of the Customs Act, the Ex.P-7 need to be looked into as an evidence and not as a statement of the accused as would be recorded U/s.161 of Cr.P.C. But, the complainant is bound to establish the accused being issued with summons U/s.108 of the Customs Act, pursuant to the accused having disputed the very issuance of summons under the aforesaid provision. Moreover, there is no any iota of evidence of the complainant to establish the contents of Ex.P-7 being read over and explained to accused in his native language.
34. It is the basic principle that, the complainant firstly as to the demonstrate the recovery of the seized contraband and should also establish the said fact by the cogent evidence either oral or documentary as to the said contraband being recovered from the accused, in the presence of independent witnesses. At this juncture, it is pertinent to note that it is the complainant's case that, the contraband was seized from the custody of the accused in the presence of two independent witnesses. That being the case, the testimony of PW-4 i.e., the independent witness to the mahazar having not withstood the test of cross-examination is very much a setback to the complainant's case.
17 C.C.No.130/202135. It is also significant to note that the testimony of PW-3 i.e., the official attached to the complainant Department, who had typed the Ex.P-3 & Ex.P-7 is also tainted with substantial omissions and contradictions. The testimony of PW-3 more particularly during the course of cross- examination, wherein, he has admitted as to he has typed Ex.P-3 as per the version of PW-2 and witnesses, so also having pleaded ignorance regarding the time of typing the statement of accused will certainly have a great relevance in so far as evaluating and assessing the case of the complainant is very much a significant aspect amounting to substantial contradiction and improvement in connection to the material fact.
36. In the case on hand, pursuant to the mahazar as per Ex.P-3 being disputed by the accused so also the seizure/recovery, the complainant being bound to establish the factum of drawing the mahazar as per Ex.P-3 by examining the relevant independent witnesses, though examined PW-4, who has been shown in the mahazar at Ex.P-3, his testimony having not withstood the test of cross- examination by the accused, the testimonies of the PW's-1 to 3 is unable to connect the chain of events and establish the link as contemplated by the Hon'ble Apex Court in a decision reported in 2014 SAR (Crl) 1191 in Vijay Thakkar V/s. State of Himachal Pradesh so also in another decision reported in 2014 SAR (Crl) 1205 in Sangili @ Sanganathan V/s. State of Tamilandu.
18 C.C.No.130/202137. It is also significant to consider as to pursuant to the accused having disputed the very concealment, though the complainant has claimed the confiscation of seized gold in the form of paste as per Ex.P-6 U/s.111 of the Customs Act and Section 119 of the Act respectively. The complainant has not made any efforts to produce the report by the Joint Commissioner of Customs, who has passed an order of confiscation as per Ex.P-6 neither by summoning the proceedings of Ex.P-6 through this court or by examining the said Joint Commissioner of Customs, in order to demonstrate the material object being seized/recovered by the customs officials at the premises of KIAL, Bengaluru. This view of the court is supported by the decision of the Hon'ble High Court of Madras in the case of Raja V/s. State in Crl.R.P. No.772/2008.
38. The arguments of the Spl. PP as to the statement of the accused U/s.108 of the Act as per Ex.P-7 is sufficient to incriminate the accused by placing reliance upon the authorities cannot be the justifiable arguments, as it is the settled position of law that the statement recorded U/s.108 of the Customs Act, alone cannot be made as a sole basis to prove the criminal charge alleged against the accused, on account of Customs officials not being police officials, unless the same is corroborated by the reliable evidence i.e., seizure of the subject matter from the custody of the accused in the case on hand.
39. It is pertinent to note that in the case on hand, though the complainant Department officials PW's-1 to 3 have 19 C.C.No.130/2021 very much accounted regarding their role of investigation in so far as seizure/recovery of the contraband which was attempted to be smuggled, the testimonies of the said witnesses though is admissible in evidence, it has to be scrutinized with a higher degree of caution as there will be possibility of exaggeration to strengthen the case of the Department. It is pertinent to consider as to the testimonies of PW's-2 and 3 have very much not withstood the test of cross- examination. This is at this juncture, the evidence of independent witness i.e., PW-4 will have a role to assess and appreciate the complainant's case in the true spirit, as contemplated under the provisions of the Indian Evidence Act. The said PW-4 having deposed contrary to his version in examination-in-chief very much creates a suspicion in the complainant's case.
40. Furthermore, the Investigating Officer/PW-2 having not investigated and interrogated regarding the involvement of one Mr. Saleem Bai, who according to the complainant Department is the mastermind/person behind the accused in the attempt to smuggling as per Ex.P-7 neither by arraying him as a witness nor by arraying him as accused or by recording his voluntary statement, certainly creates doubt in the mind of the court which entitles to enlarge the benefit of doubt in favour of the accused.
41. In the case on hand, it is also significant to note that, though the burden U/s.123 of the Customs Act is upon the accused to demonstrate regarding the so called contraband 20 C.C.No.130/2021 not being smuggled in contravention of the Act, certainly the said section does not exempt the complainant from discharging the initial burden of proving the so called seizure or recovery of the contraband from the custody of the accused.
42. That apart, pursuant to the versions of the official witnesses being contrary to each other, the direct evidence being unable to be establishing the complainant's case, on account of PW-4 having not withstood the test of cross- examination, the mahazar as per Ex.P-3 very much requires to be treated as not proved. In other words, this court can certainly hold that, the complainant's case lacks corroboration in so far as the allegations in the complaint.
43. The arguments of the learned Spl. PP as to the flight ticket and baggage tag cannot be construed to be significant, as the mahazar at Ex.P-3 will suffice the very requirement of proving recovery, cannot be accepted, as the complainant is bound to establish its case beyond all reasonable doubts by corroborating its case, without giving scope for the contrary. On this context, the arguments of the learned counsel for the accused as to the complainant has failed to demonstrate the factum of accused being the international passenger carrying concealment, which contained the so called smuggled contraband by establishing the journey of the accused on the basis of the serial number as could be gathered from flight ticket and other travel documents, certainly holds the water. This court is of the view that, the accused is entitled to the benefit of doubt on this count as well.
21 C.C.No.130/202144. It is relevant to note that, except the allegations as to accused having made false declaration in the complaint at Ex.P-1, which amounts to commission of offence U/s.132 of the Customs Act. There is no any iota of clinching evidence by way of oral and documentary evidence in order to incriminate the accused having made false declaration either by way of submitting declaration at the time of boarding or de- boarding the Aircraft or in any other form. In absence of the positive evidence so as to gather the false declaration by the accused, the claim of the complainant Department in the complaint alone cannot be held to be tenable.
"Conclusion"
45. In light of the discussion made supra, this court is of the considered view that, the complainant has miserably failed to bring home the guilt of the accused beyond all reasonable doubts by cogent, oral and documentary evidence to the satisfaction of this court. This court has very much considered the ratios set out in the decisions relied upon by the learned Spl. PP. The complainant's case is very much unable to pass the test of proof as prescribed and mandated by the catena of the decisions as to the proof in the criminal cases as that of beyond all reasonable doubts. The instant case lacks the very requirements of the proof in so far as criminal cases as to corroboration of the allegations of the complainant. This court is justified, having due regard to the evidence placed on record and for the foregoing reasons to hold as to the complainant's case being tainted with 22 C.C.No.130/2021 substantial improvements, omissions and contradictions. As such, this court without any hesitation answers the instant Point Nos.1 & 2 in the Negative.
46. Point No.3: In the light of the discussion and findings, assigned supra while appreciating the Point Nos.1 & 2, this court proceeds to pass the following:
ORDER Acting under section 248(1) of Cr.P.C., the accused is acquitted of the offences punishable under Sections 132 & 135(1)(ii) of the Customs Act, 1962.
Consequently, the accused is set at liberty.
The bail bond of the accused stands canceled. (Dictated to the Stenographer directly on computer, typed by him, corrected and then pronounced by me, in open court on this the 13th day of December 2024) (VISHWANATH C GOWDAR) Presiding Officer, Spl. Court for Economic Offences, Bengaluru.23 C.C.No.130/2021
:ANNEXURE:
List of the witnesses examined on behalf of the Complainant:
PW-1 : Sri. Nithin Krishna Shenoy
PW-2 : Sri. Rajesh Shastri
PW-3 : Sri. Ankith Kumar
PW-4 : Sri. Shivanaga
List of the Documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Complaint
Ex.P-2 : Original Sanction Order
Ex.P-3 : Mahazar
Ex.P-4 : Gold Valuation Certificate
Ex.P-5 : Boarding Pass
Ex.P-6 : Order passed by Joint Commissioner
of Customs
Ex.P-7 : Statement of Accused
List of witnesses examined on behalf of the Accused:
- Nil -
List of Documents examined on behalf of the Accused:
- Nil -
Presiding Officer, Spl. Court for Economic Offences, Bengaluru.24 C.C.No.130/2021
13.12.2024 Complt.: Spl. PP Accd: BJ For Judgment Spl.PP for the complainant present.
Accused present.
Judgment pronounced in the open court (vide separate order) ORDER Acting under section 248(1) of Cr.P.C., the accused is acquitted of the offences punishable under Sections 132 & 135(1)(ii) of the Customs Act, 1962.
Consequently, the accused is set at liberty.
The bail bond of the accused stands canceled.
PRESIDING OFFICER.