Madras High Court
The Assistant Commissioner vs A.Dhanapal on 23 May, 2008
Crl.A.(MD) Nos.58 and 59 of 2009
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Date of Reserving Judgment Date of pronouncing Judgment
28.09.2019 19.10.2019
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
Crl.A. (MD) Nos.58 and 59 of 2009
The Assistant Commissioner
Customs Department
Tuticorin.
(O.R.No.2/98) .. Appellant in both Appeals
Versus
1. A.Dhanapal
2. A.T.Mydeen
3. Janarthanam
4. N.Ramesh
5. Rahman Sait @ Nathan
.. Respondents in Crl.A.58/2009
K.M.A.Alexander .. Respondent in Crl.A.59/2009
Appeals filed under Section 378 of Cr.P.C. against the
acquittal of respondents in both the appeals for the charges under
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Sections 132, 135(1)(A)(ii) r/w.135(A) of the Customs Act, by the
learned Additional Chief Judicial Magistrate, Madurai, in C.C.Nos.2
of 2003 and 4 of 2004 vide separate judgments dated 23.05.2008.
For Appellant in : Mr.C.Arulvadivel @ Sekar
both appeals Special Public Prosecutor
for Customs & Central Excise
For Respondents in : Mr.N.Dilip Kumar
both appeals and
Mr.S.Jothimani
(Legal Aid Counsel)
Common Judgment
A1 to A5 in C.C.No.2 of 2013 on the file of the Additional Chief
Judicial Magistrate, Madurai, are the respondents in Crl.A.No.58 of
2009 and the sole accused in C.C.No.4 of 2014 on the file of the
Additional Chief Judicial Magistrate, Madurai, is the respondent in
Crl.A.No.59 of 2009.
2. The appellant registered a case in O.R.No.2 /1998
against the respondents/accused for the offences under Sections
132, 135(1)(A)(ii) r/w.135(A) of the Customs Act and after
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investigation, filed a complaint before the learned Additional Chief
Judicial Magistrate, Madurai. The learned Additional Chief Judicial
Magistrate taken cognizance of the complaint filed in C.C.No.2 of
2003 and after completing the formalities, framed charges against
the respondents for the offences under Sections 132, 135(1)(A)(ii)
r/w.135(A) of the Customs Act.
3. During investigation, the respondent in Crl.A.No.59 of
2009 was absconded and therefore, his case was split up in C.C.No.4
of 2004.
4. After completing the formalities, on the side of the
appellant, as many as 7 witnesses were examined as PW.1 to PW.7
and 13 documents were marked as Exs.P1 to P13, besides marking
two Material Objects as M.Os.1 and 2 and one Court document as
Ex.C1 and after completing the prosecution evidences, when
incriminating circumstances culled out from the prosecution
witnesses were put before the accused, they denied as false and no
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oral and documentary evidence was produced on the side of the
defence.
5. After completing the trial and hearing the arguments on
either side, the learned Additional Chief Judicial Magistrate,
Madurai, by way of separate judgments, acquitted the
accused/respondents in both the appeals on the ground that the
appellant/prosecution has not proved its case beyond reasonable
doubt against the accused/respondents.
6. Challenging the said judgments of the learned Additional
Chief Judicial Magistrate in C.C.No.2 of 2003 and C.C.No.4 of 2004
dated 23.05.2008, the appellant filed present appeals. Since both
the appeals are arising out of common O.R.No.2/98 and all the
respondents are allegedly involved in the same offences, both the
appeals have been taken together and common judgment is
pronounced.
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7. The learned counsel for the appellant/Customs would
submit that the learned Additional Chief Judicial Magistrate failed
to note that during the seizure proceedings, the respondent in
Crl.A.No.59 of 2009 Alexander was not available and so, his name
was not mentioned in Ex.P12 and even, there is no contradictions
between the statements of Rahman Sait, 5th respondent in Crl.A.No.
58 of 2009 and Ex.P6 inventory Mahazar as observed by the learned
Additional Chief Judicial Magistrate and that the sanction of
prosecution against the respondents were duly obtained and mere
non-examination of the sanctioning authority will not vitiate the
case and the person, who is well acquainted with the prosecution
was examined as witness. The learned Additional Chief Judicial
Magistrate failed to understand the case of the prosecution that the
accused attempted to export sandal woods stating that they are
exporting roofing tiles, which is amounting to offence under the
Customs Act and further, the learned Magistrate failed to consider
that the sandal woods are prohibited items under the EXIM policy
and the respondents fraudulently declared the commodity as
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roofing tiles. The learned trial Judge also failed to appreciate the
fact that the shipping bill was filed by the respondents in bogus
name to escape from the clutches of law. Further, the learned
counsel for the appellant would submit that once the shipping bill is
filed, then the intention of the respondents/accused to export the
commodity is established and the seized sandal woods are the
prohibited items under the Foreign Trade Policy 1997-98. The trial
Judge also failed to appreciate the legal position that Section 2(33)
of the Customs Act defines the term “prohibited goods” as any
goods, the import or export of which is subject to any prohibition
under this Act or any other law for the time being in force. Since
the sandal woods are declared as prohibited goods under Foreign
Trade (Development and Regulation) Act, 1992, it should be also
considered as prohibited item under Section 11 of the Customs Act.
Further, he would submit that the learned Additional Chief Judicial
Magistrate himself visited the customs godown and examined the
sandal woods seized by the Department; since the commodity is
huge in quantity, it was not produced before the Court; hence the
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non-production of the seized goods before the Court is not a ground
for acquittal. The learned trial Judge also failed to appreciate that
the voluntary statements given by the respondents/accused before
the Customs Officers are admissible in evidence.
8. He would further submit the learned trial Judge
acquitted the respondents mainly on the ground that the
sanctioning authority was not examined and the sanctioned order
was not proved before the Court and the seized sandal woods have
not been produced before the Court and the confession statements
given by the respondents/accused were subsequently retracted and
further, there is no proof to show that they have attempted to
export sandal woods in the name of roofing tiles and also the
prosecution failed to prove misdeclaration when the bills were not
produced.
9. He would further submit that when the confiscation
proceedings was initiated against the respondents, the said order
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was challenged by the appellant herein. The competent authority
has passed an order in favour of the appellant and initially the
Commissioner of Customs admitted the appeal and passed penalty;
and the respondents taken appeal before the Appellate Tribunal
and the Appellate Tribunal allowed the appeal filed by the
respondents herein and set aside the penalty imposed by the
Commissioner of Customs. Challenging the said order, the
appellant herein preferred CMA.No. 93 of 2009 before this Court
and this Court set aside the order passed by the Appellate Tribunal
and restored the order passed by the Commissioner of Customs.
The respondents have not challenged the order passed by this Court
in CMA.No.93 of 2009 and therefore, that order is final, and now,
the respondents cannot say that the appellant has not proved its
case beyond reasonable doubt and also they have retracted the
statements. Therefore, the learned counsel for the appellant
would submit that the present appeals to be allowed and the
judgment of the learned Additional Chief Judicial Magistrate is
liable to be set aside and he would also place reliance on the
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judgment of this Court in CMA No.93 of 2009 (Commissioner of
Customs, Trichy ..vs.. S.Janarthanan) dated 27.02.2015.
Further, he would place reliance on the common judgment of this
Court made in W.P.Nos.29743 to 29745 of 2014
(M/s.A.S.Constructions and Lighting Co., represented by its
Partner M.Nandakumar and others ..vs.. The Additional
Director of Revenue Intelligence, Chennai and others) dated
06.01.2015.
10. The learned counsel for the respondents would submit
that in this case, the sanctioned proceedings is not established and
the person, who has sanctioned the prosecution has not been
examined to establish that he has applied his mind and accorded
sanction. However he would submit that the seized articles and the
sandal woods were not produced before the Court and the Material
Objects were not identified. Further, he would submit that no
independent witnesses were examined to establish that the
godowns were searched and goods were seized. Further, he would
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submit that the statements made by the respondents were
subsequently retracted and therefore, the retracted statements of
the respondents/accused cannot be relied for convicting the
respondents/accused and in the confiscating proceedings, the
Customs Commissioner, though imposed penalty under Section 114
of the Customs Act, subsequently, the Appellate Authority set aside
the order of the Customs; though this Court has set aside the order
of the Appellate Tribunal, the order passed in the confiscating
proceedings under Section 114 of the Customs Act is nothing to do
with the criminal case; In the criminal case, the prosecution has to
prove its case beyond reasonable doubt and they cannot solely
relied on the decision passed by the quasi-judicial authority.
Therefore, the learned trial Judge rightly appreciated the entire
evidence of the prosecution and disbelieved the case of the
prosecution and found that the respondents/accused are not found
guilty and acquitted them and there is no merit in the appeals and
the appeals are liable to be dismissed and in the appeal against
acquittal, accused got double presumption of innocence, unless
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there is no compelled circumstances warrant, the Appellate Court
will not interfere with the judgment of acquittal passed by the trial
Court. Unless there is perversity in appreciation of evidence,
merely because the other views are possible, normally the
Appellate Court will not take a different view and substitute its
unfair reason and reverse the judgment of acquittal. The learned
counsel for the respondents placed reliance on the following
judgments of this Court and the Hon'ble Apex Court:-
(i) 2013 SCC Online Mad 771 : (2014) 300 ELT
342 (Commissioner of Customs (Imports) ..vs.. Sainul
Abideen Neelam and another);
(ii) (1996) 9 Supreme Court Cases 225 (Ramesh
Babulal Doshi ..vs.. State of Gujarat);
(iii) 2006 (197) ELT 44 (Tri. - Chennai)
(S.Janarthanan ..vs.. Commissioner of Customs,
Chennai); and
(iv) (2010) 13 Supreme Court Cases 657 (Sunil
Kumar Sambhudayal Gupta (DR.) and others ..vs..
State of Maharashtra).
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11. Heard the rival submissions made on both sides and
perused the materials available records.
12. The case of appellant/prosecution is that on 10.03.1998,
the officers of the Customs, Preventive Division, Tuticorin, searched
the godown at No.111, Ettayapuram Road, Tuticorin and found rows
of cartons stacked in the southern side of godown and three persons
were also seen there. On enquiry, one person identified himself as
Nathan of Trichy and stated that he had employed other two
persons, viz., Selvaraj and Kalkan for packing the goods. The
officers found 476 cartons in the godown. Out of which, 419 of
them containing sandal wood and 57 containing roofing tiles,
intended for export to Singapore. Sri.R.Kalkan stated that as
directed by Nathan, he along with one Selvaraj had come to the
godown for packing the tiles and that he did not know anything
about sandal woods. Sri.Selvaraj also stated to the same effect.
The sandal woods, the export of which was prohibited under the
Customs Act, the Foreign Trade (Development and Regulation) Act,
1992 and the EXIM Policy 1997-2002, were seized by the officials.
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The roofing tiles, which appear to have been used for concealing
the sandal woods were also seized by them. The officers also
searched Room No.212 of Chitra Lodge, Tuticorin on the same day
and recovered documents including Visiting Card of one Sri.Rahman
Sait. Sri.Nathan, who in his statement dated 11.03.1998 admitted
that his real name was Rahman Sait and the above Visiting Card was
that of him. He further stated that he had come to meet one
Sri.Dhanapal, who had illicit dealing in sandal woods and made
discussion with him for smuggling of sandal woods to foreign
countries and in one such meeting, Dhanapal told him that he was
going to discharge sandal woods illicitly through Tuticorin Port and
wanted suitable persons for doing that job. Accordingly, Rahman
Sait @ Nathan suggested the name of Alexander, who is the
respondent in Crl.A.No.59 of 2009, who was running M/s.Gilbert
Overseas Shipping Company at Tuticorin and in December 1997, he
met Dhanapal, who told him that 10 tons of sandal woods were to
be smuggled to Singapore and that he contacted the said Alexander,
who agreed to arrange it for illicit export and 200 bags of sandal
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woods were sent to Alexander, which were kept in godown. Since
the said Alexander did not pursue the export in the manner as
stated by him, the said Rahman Sait @ Nathan (R5), along with
Dhanapal (R1), met one Mydeen (R2) of Mannadi, who was an
exporter in Chennai and discussed the matter and it appears that
the second respondent Mydeen told that he would arrange illicit
export through one Janarthanam @ Janar (R3) in Crl.A.No.58 of
2009. Accordingly, he met R3- Janarthanam @ Janar on 02.03.1998
and requested for arranging a godown and the said Janarthanam @
Janar (R3) arranged a godown through his friend Hari Ganga Ram.
13. During investigation, it came to the knowledge of the
appellant Department that Janarthanam @ Janar (R3) took export
business under the panel “Janar Exports” and his relative Sri.Mohan
introduced Mydeen (R2) of Chennai to him and the second
respondent Mydeen asked the third respondent Janarthanam @
Janar to help him in exporting the goods, such as sandal woods
through Tuticorin Port and on 02.03.1998, the second respondent
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Mydeen contacted him over phone and told him that he got one
order for export of Mangalore Tiles to Singapore from one Nathan
(R5) and requested for arranging a godown. On 06.03.1998, Mydeen
(R2) sent documents by fax and asked Janarthanam @ Janar (R3) to
file the shipping bill as roofing tiles. On 07.03.1998, Janarthanam
@ Janar (R3) handed over the documents to Ramesh (R4) for filing
shipping bill, who also filed the same through C & F Agent
M/s.Ukkirapandian pillai & Sons. On 09.03.1998, Rahman Sait @
Nathan (R5) came to the office of Janarthanam @ Janar (R3), to
ascertain whether the shipping bill was filed and also informed 2
tons of sandal woods were also part of roofing tiles. It appears that
there has been some altercation between R3 and R2 with regard to
the nature of sandal woods in the guise of roofing tiles, but,
however, the procedure of filing shipping bill proceeded through
Ramesh (R4), who corroborated the statement of Janarthanam @
Janar (R3). Therefore, after investigation, they filed the case
before the learned Additional Chief Judicial Magistrate and the
learned Additional Chief Judicial Magistrate also taken cognizance
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of the complaint in C.C.Nos.2 of 2003 and 4 of 2004. After trial,
the learned Additional Chief Judicial Magistrate found that the
prosecution has failed to prove its case, which warrants
interference.
14. In this case, the trial Court found that the sanctioned
authority has not been examined and therefore, the sanction of
prosecution was not established and the goods were not produced
before the Court and the statements given by all the accused have
subsequently been retracted and therefore, the trial Court found
that the prosecution has failed to establish its case beyond
reasonable doubt. In this case, the prosecution has examined 7
witnesses and marked 13 documents and produced 2 M.Os. and one
Ex.C1. Though the learned counsel for the respondents would
submit that the witnesses have turned hostile and they have not
supported the case of prosecution and the seized goods were also
not established, since they were not produced before the Court,
One Mr.Kalai Mani, who was examined as PW.2, has clearly stated
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about the sanction of prosecution. Though the officer, who
sanctioned the prosecution was not examined in this case, the
person who acquainted with the sanction of prosecution
proceedings in this case, was examined as PW.2 and he has clearly
spoken about the sanction of prosecution and also the sanctioned
authority has applied his mind and accorded the sanction and so,
mere non-examination of the officer, who has accorded the
sanction, is not fatal to the case of the prosecution, when it was
corroborated by other witnesses in this case. One Mr.Sriram, I.R.S.,
was examined as PW.3 and he has clearly deposed that on
10.03.1998, he received secret information about the smuggling of
sandal woods and they went to the spot, viz., Tuticorin,
Ettayapuram Road and searched the godown at Door No.111 at
about 11.30 hours and when he went to the place, the officers
enquired the persons, those who were in the godown and recorded
their statements and he has also seen the sandal woods and also the
Mangalore roofing tiles in the godown and they also recovered
Mangalore roofing tiles and also the sandal woods through Mahazars
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and he has also signed in the Mahazars. Therefore, searching of
godown at No.111, Ettayapuram Road, Tuticorin on 10.03.1998 was
established.
15. One Sankaralingam was examined as PW.4, who had
clearly deposed that when he was working as Customs Inspector
during 1998 in Tuticorin, he received the information that in
Tuticorin, Ettayapuram Road, some of them hided the sandal woods
and he went to the place and one of the respondents Harigangaram
has given statement, which is marked as Ex.P8 and one Sundarrajan
was examined as PW.5. He has also stated that they searched the
company at Chennai and nothing was recovered during the search.
PW.6, one Mayilerumperumal was examined and he has spoken
about the photographs taken on 17.11.2007 and the CD, which were
marked as M.Os.1 and 2 and one Balraj was examined as PW.7 and
he has spoken that on 17.11.2007 at about 10' O clock, he went to
the godown and where he recovered 2720 Mangalore roofing tiles
and also recovered 57 cartons containing 2280 roofing tiles and at
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that time, they also taken photographs in their presence. During
investigation, the statements were also recorded from the
respondents and the statements recorded from Rahman Sait (R5)
was marked as Ex.P3 and has clearly deposed about the overt act
attributed in this case and the statement recorded from
Janarthanam (R3) was marked as Ex.P4 and the statement recorded
from Ramesh (R4) was marked as Ex.P5 and the statement recorded
from Mydeen (R2) was marked as Ex.P6 and the Mahazar is marked
as Ex.P7 and the statement recorded from one Harigangaram was
marked as Ex.P8 and the identity card of Antony Rajan was marked
as Ex.P9 and the Mahazar dated 10.03.1998 was marked as Ex.P10
and the statement of one Aiyarappapillai was marked as Ex.P11.
Further, the show cause notices issued by the Commissioner of
Customs No.I, Williams Road, Contonment, Trichy was marked as
Ex.P12. From the evidences of PW.1, the sanction of prosecution
was established and from the statements given by the respondents
from Exs.P3 to Ex.P6, it is clear that all the respondents have
involved in the offence.
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16. Though Ramesh (R4) in Crl.A.No.58 of 2009 is not
directly involved in this case, even though after knowing fully well
that the other respondents attempted to smuggle the sandal woods
under the guise of roofing tiles, he has not informed to the Customs
Authority and therefore, he is also abide the same to the other
accused.
17. The prosecution has filed the case for the offence under
Section 135(A) of the Customs Act, which is with regard to the
offence for the preparation and also Section 135(1)(A)(ii) r/w.
135(A), which is relating to attempt to smuggle through Tuticorin
Port to Singapore under the guise of roofing tiles. Though they
prepared the bills, but one or some reasons, they could not succeed
in this. But the prosecution has filed this case against the
respondents for preparation and also attempt to smuggle. On
reading of the case of the prosecution and also a perusal of the
prosecution witnesses and the statements recorded from the
respondents, the prosecution has established the charges as
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levelled against the respondents. As already stated, mere non-
examination of the sanctioning authority is not fatal to the case of
the prosecution.
18. The cases cited by the learned counsel for the
respondents are not applicable to the present case on hand. There
is no quarrel with the propositions of law laid down by the Hon'ble
Supreme Court and also the legal propositions followed by this
Court, whereas in this case, it is a peculiar nature that the persons,
who wanted to export the sandal woods, are not ready to declare
the goods and pay the customs' duty and thereby, violated the EXIM
Policy and Foreign Trade (Development and Regulation) Act,1992
and they attempted to smuggle the goods under the guise of roofing
tiles and contacted the persons from Chennai, and also contacted
other persons in the way, but could not succeed, where all the
respondents are involved in this case and the statements recorded
from the respondents Exs.P3 to P6 have clearly established the
involvement of the respondents in this case. Though the main
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defence taken by the respondents that the statements given by the
respondents were subsequently retracted, but in this case, though
they have retracted, but the fact remains that the prosecution has
proved its case beyond reasonable doubt that they have attempted
to smuggle the goods.
19. Though the learned counsel for the respondents has
stated that the goods were not seized within the customs area, but
this case is not for the offences of misdeclaration and smuggled the
goods, but in this case, the offences are only preparation and
attempt, and in this case, the persons, who were not connected
with Tuticorin, had taken the sandal woods from Chennai to
Tuticorin and kept in godown. Though the learned counsel for the
respondents would submit that the owners of the goods have not
been established and the recovery of goods have not been
established, but the evidence of the prosecution and the
statements of the respondents clearly show that Dhanapal (R1)
plays main role in this case, who wanted to smuggle the sandal
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woods and when he searched the person, he contacted R5, and in
turn R5 contacted R2, but they could not do that job and therefore,
R3 also turned into the picture and R4 for filing the shipping bill.
Therefore, reading of the entire evidence and also the order of this
Court in CMA No.93 of 2009 dated 27.02.2015 clearly goes to show
that all the respondents are involved in this case and also the
prosecution has established its case through oral and documentary
evidence and complicity of the respondents involved in the
offences, but the respondents have not established that the
statements given by them before the Customs Officers itself are
under force or coercion or undue influence or any threat. But
reading of the entire evidence would clearly shows that the
statements were voluntary one.
20. Even though it was argued that Janarthanam @ Janar
(R3) had retracted the statement and the same was not voluntary
one, but others in whose statements he was implicated, had also
retracted their statements. Janarthanam @ Janar (R3) was
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contacted Mydeen (R2) through Sri.Mohan, for export of onions,
tiles, etc., After filing the shipping bill by Ramesh (R4), Rahman
Sait (R5) informed about sandal woods being part of the
consignment and he had immediately asked Ramesh (R4) to cancel
the shipping bill, but on intervention by Mydeen (R2) that if he did
so, he would involve him, he did not take any further action. But
he informed the facts to Ramesh (R4). As he had no knowledge, he
could not be charged under Customs Act. The sandal woods were in
the process of being packed and there was no attempt made to
export the same. On a perusal of the records, it is admitted fact
that the said R3 was informed by Rahman Sait about the sandal
woods being part of roofing tiles. Inspite of having knowledge, he
did not inform the same to the Customs and he rather informed
Sri.Mydeen (R2) for monitory consideration to do that. Therefore,
R3 was also involved in this case. This Court already found in CMA
that the Commissioner found that inspite of having knowledge of
the sandal woods being part of the consignment of roofing tiles,
they did not intimate the same to the Customs Authorities.
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Therefore, though the respondents have stated that no ownership is
established and the goods also not produced before the Court, but
the fact remains that all the respondents, in one way or other,
knowing fully well that the sandal woods were kept in the godown
and making attempt to smuggle the goods to Singapore in the name
of roofing tiles, but they have not informed the same to the
Customs officials at the moment when they came to know that the
sandal woods are being part of the roofing tiles.
21. Therefore, in the absence of the statements given by the
respondents, obtained by the customs officials otherwise in the
manner known to law, it is well settled law that any statement
made before the Customs Officers is admissible in evidence and
when the order of the Assistant Commissioner as confirmed by this
Court in CMA No.93 of 2003 and the penalty imposed by the
Commissioner to the respondents were confirmed and none of the
respondents have filed any appeal challenging the order of the
Court, now, they cannot say that the statements given by them
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were subsequently retracted and the Court cannot rely on the
retracted statements. It is well settled proposition of law that the
customs officials are not the police officials and therefore, the
statements given before the customs officers are admissible in
evidence and therefore, from the evidences of prosecution, the
prosecution has proved its case beyond reasonable doubt as the
charges framed against the respondents are only preparation and
attempt to smuggle. Though before the trial Judge, the
photographs of the sandal woods were also taken and produced, the
learned trial Judge also inspected the godown and also seen the
materials that due to the larger quantity, it could not be produced
before the Court trial during the trial and therefore, the non-
production of sandal woods or roofing tiles before the trial Court
during the trial cannot be fatal to the case of prosecution.
22. On reading of the entire evidences of the prosecution
and the statements given by the respondents before the Customs
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officials and also the photographs which were produced before the
Court as Material Objects it is seen that the penal proceedings were
taken by the Department, which was confirmed by this Court and
admittedly the respondents have not challenged the order of this
Court regarding penalty proceedings. Therefore, in these
circumstances, this Court comes to the conclusion that the
prosecution has proved its case beyond reasonable doubt that the
respondents made a preparation and attempt to smuggle the sandal
woods in the name of roofing tiles and as per Foreign Trade
(Development and Regulation) Act, 1992, EXIM Policy and Foreign
Trade Policy 1997-98, the sandal woods are prohibited items for
exporting. The learned trial Judge failed to consider the legal as
well as factual position in this case and even though there is
sufficient materials available to convict the respondents for the
charged offences, he has not appreciated the evidence properly in
right perspective to give effect to the Specific provisions of the
Customs Act and this Court finds that the appellant has not proved
its case and the respondents are not found guilty for the offence
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under Section 132 of Customs Act and all the respondents are
acquitted for the said offence. The appellant/Customs Department
has proved its case beyond reasonable doubt for the offence
punishable under Sections, 135(1)(a)(ii) r/w.135(A) of the Customs
Act and therefore, they are convicted under Sections 135(1)(a)(ii)
r/w.135(a) of the Customs Act. Therefore, the judgment of the
learned trial Judge is liable to be set aside and accordingly, set
aside, in this regard.
23. Since it is a reversal judgment, before awarding
sentence, the accused have to be given opportunity for being asking
the question of sentence.
24. In the result, the Criminal Appeal stands allowed in part
and the acquittal of respondents in both the appeals for the charges
under Section 132 are confirmed and for the charges under
Sections, 135(1)(a)(ii) r/w.135(a) of the Customs Act, by the
learned Additional Chief Judicial Magistrate, Madurai, in C.C.Nos.2
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Crl.A.(MD) Nos.58 and 59 of 2009
of 2003 and 4 of 2004 vide separate judgments dated 23.05.2008
are hereby set aside. The respondents in both the appeals are
directed to appear before this Court on 23.11.2019 for being asking
the question of sentence.
19.10.2019.
Speaking / Non-speaking
Index : Yes/No
mra
To
1. The Additional Chief Judicial Magistrate,
Madurai.
2. The Public Prosecutor,
High Court, Chennai.
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Crl.A.(MD) Nos.58 and 59 of 2009
P.VELMURUGAN, J.
mra Pre-delivery Judgment in Crl.A.(MD) Nos.58 and 59 of 2009 19.10.2019.
30/32 http://www.judis.nic.in Crl.A.(MD) Nos.58 and 59 of 2009 Crl.A.(MD)No.58 & 59 of 2009 P.VELMURUGAN, J.
When the matter is listed under the caption for 'Question of Sentence' today for the appearance of the parties, none appeared.
2. Learned counsel appearing for the Department submits that the accused have been absconded and they may be in North India.
3. Since the respondents have not availed the opportunity given by this Court and the matter is pending for more than 10 years, this Court, in the absence of availing the right of the parties, is inclined to pronounce the sentence.
4. Since the respondents / accused were acquitted for the offence under Section 132 of Customs Act and convicted for the offence under Section 135 (1)(a)(ii) r/w 135 (A), respondents / accused in Crl.A.(MD)No.58 of 2009 shall undergo imprisonment of one year and pay fine for a sum of Rs.50,000/- each, in default, to undergo six months rigorous imprisonment and respondent in Crl.A. (MD)No.59 of 2009 shall undergo one year imprisonment and to pay a fine of Rs.50,000/-, in default, to undergo six months rigorous imprisonment.
31/32 http://www.judis.nic.in Crl.A.(MD) Nos.58 and 59 of 2009 P.VELMURUGAN, J.
sm/pm
5. Department is directed to secure the respondents / accused to undergo the sentence of imprisonment imposed by this Court.
6. Mr.S.Jothimani, Legal Aid Counsel for the respondents in both the appeals is entitled for fee as per the Rules.
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