Bombay High Court
State Of Maharashtra vs Fazal Mohamood Tandel on 6 October, 1990
Equivalent citations: 1992(57)ELT63(BOM)
JUDGMENT
1. This Criminal Appeal is directed against the judgment and order of the learned Additional Sessions Judge for Greater Bombay dated 27th September, 1982 whereby he quashed and set aside the order of the conviction and sentence passed by the learned Additional Chief Metropolitan Magistrate, 19th Court, Esplanade, Bombay convicting and sentencing the respondents under Sections 135(1)(a), 135(1)(b), r.w. 135(1)(ii) of the Customs Act and Section 5 of the Imports and Exports (Control) Act.
2. The prosecution case is that on 23-4-1972 original accused No. 1 and one Kamlakar Thakur carried 145 bags of pulses in the truck of the said Thakur from the residence of the said Thakur to Marve Dock and got them loaded in the vessel 'Vasanti Prasad' belonging to original accused No. 2, who was also its tandel for exporting the said 145 bags of pulses to Dubai. The said vessel left Marve port in the evening of 23-4-1972. Original accused No. 2 and original accused Nos. 4 to 10 and two more persons one Anwar and one Eknath took the vessel to Dubai where they reached on or about 2-5-1972. The accused remained on board the vessel and only Anwar and Eknath got down and went ashore in the town and brought one Ramesh who had been mentioned by original accused Nos. 1 and 2 while leaving Marve port as the person who made the arrangement for unloading the said 145 bags of pulses in Dubai. During that stage in the vessel, Anwar and Eknath were the only persons who used to leave the vessel during day time and return in the evening for a halt. On or about 21st May, 1972 Ramesh, Anwar and Eknath brought 27 packages and loaded the same in the vessel 'Vasanti Prasad' with instructions to take them to Marve and to be delivered to another vessel who would approach them and make red and white signals. For this purpose they were paid Rs. 500/- and also some ration at Dubai. Anwar, Eknath and Ramesh stayed at Dubai. On 20-5-1972, the vessel 'Vasanti Prasad' was near Arnala Port within the Indian Customs waters on its return journey from Dubai where some 20-25 persons came in a fishing vessel and forcibly boarded the vessel 'Vasanti Prasad' from where they looted 7 packages. The vessel 'Vasanti Prasad' thereafter came to Manori creek on or about 29-5-1972 and on 30-5-1972, while it was at anchor, one vessel by name 'Narayan Prasad' bearing No. JDR 1496 came towards 'Vasanti Prasad' and gave red and white light signals. After approaching the vessel 'Vasanti Prasad' three crew members from the other vessel namely accused Nos. 11, 12 and 13 helped in loading the said packages on the vessel 'Narayan Prasad'. Thereafter, 'Vasanti Prasad' reached Manori Bunder on the morning of 31st May, 1972. All the crew members except original accused No. 5 went to their respective houses. After receiving 16 packages, accused No. 11 brought the said vessel 'Narayan Prasad' to Marve shore where an abandoned unserviceable boat was lying. The said 16 packages were transhipped in a small boat belonging to accused No. 3 and unloaded in the cabin of the said abandoned unserviceable boat. It is further the case of the prosecution that all original accused illegally smuggled the said 16 packages and boxes containing the aforesaid goods on 30th or 31st May, 1972.
3. During the trial, accused No. 2 was absconding and hence his case was separated. In order to support its case, the prosecution examined three witnesses, viz. Bhopardekar attached to the Customs House at Manori, Takamle who was serving as a Superintendent of Thane Circle in the year 1972 and Tarkhedkar, who was then serving as Inspector in Thane Preventive Branch. They have also produced the relevant documents and statements of the accused under Sections 107 and 108 of the Customs Act. On the basis of this evidence, original accused No. 1 was discharged, while original accused No. 5 pleaded guilty and was separately convicted. As far as the remaining original accused, they pleaded not guilty to the charge. Thereafter, witnesses were recalled for cross-examination, but after the first two witnesses were cross-examined by the defence, accused No. 12 was also taken into custody. As he was absent from the beginning, all the three officers were recalled and their evidence was recorded and charge was framed against accused No. 12 on 28-3-1978. Thereafter witness No. 3 was cross-examined by the defence. So far as accused No. 12 was concerned, all the three witnesses were kept present and made available for cross-examination, but the learned advocate for accused No. 12 was absent on that day and hence the witnesses were discharged. The accused in their statement denied having committed any offence and contended that the entire evidence was false. They also pleaded that the confessional statements were recorded under threats of assault and force and they signed the said statements as per the directions of the Customs Officers. The learned Magistrate on the conclusion of the trial, found them all guilty. Accordingly, they were convicted and the original accused Nos. 2, 3, 4, 7, 8, 9, 10, 11, 12, and 13 were convicted for offences punishable under Sections 135(1)(a), 135(1)(b) r.w. 135(1)(ii) of the Customs Act, 1962 and section 5 of the Imports and Exports (Control) Act, 1947. While accused Nos. 2, 3, 4, 7, 8, 9, and 10 were sentenced to suffer R.I. for one year each and to pay fine of Rs. 2000/- each, i.d. to suffer further R.I. for six months for offences punishable under Sections 135(1)(a), r.w. 135(1)(b) of the Customs Act, 1962, no separate sentence was imposed for the offence under Sections 135(1)(b) r.w. 135(1)(ii) of the Customs Act. The said accused Nos. 2, 3, 4, 7, 8, 9, and 10 were also convicted for an offence punishable under section 5 of the Imports and Exports (Control) Act and sentenced to suffer R.I. for one month each to pay a fine of Rs. 1000/-, i.d. to suffer R.I. for two months. As far as accused Nos. 11, 12 and 13 were concerned, they were also found guilty and convicted for offences under section 135(1)(b) r.w. 135(1)(ii) of the Customs Act, 1962 and sentenced to suffer R.I. for six months each and to pay a fine of Rs. 1000/-, i.d. to suffer R.I. for two months.
4. Aggrieved by the above convictions and sentences the accused challenged the same before the Sessions Court. The learned Additional Sessions Judge by his aforesaid impugned judgment, reversed the said convictions and sentences of the learned Additional Metropolitan Magistrate and set aside the punishment awarded to them.
5. Mrs. Keluskar, the learned Public Prosecutor appearing for the State, has submitted before this Court that the judgment passed by the learned Sessions Judge is bad and illegal and cannot be sustained. She has urged that the learned Sessions Judge has overlooked the fact that the fraction of the confessional statements given by the accused was done by them after six years. Mrs. Keluskar has invited my attention to the judgment of the learned Additional Chief Metropolitan Magistrate wherein it has been observed that the witness Tarkhadkar who recorded the statements of the accused had acknowledged that the same were voluntarily made and no force or threats were given. Thereupon, the same were read over to them and were found to be correct. It is true that the defence has argued that the statements could not be taken into consideration as they were retracted. The accused have stated that they gave the statements under threats of assault and they were forced to sign the statements. The learned Additional Chief Metropolitan Magistrate acknowledged in this respect that except accused No. 5 no other accused persons were present on the vessel 'Vasanti Prasad' when Shri Bhapardekar boarded it. As far as the statements of original accused Nos. 2, 4, 7, 8, 9, and 10 he observed that the accused persons have given detailed description of the journey undertaken by them as well as the goods brought from Dubai. However, the bare perusal of the statements, it does not go to support this finding of the learned Magistrate. Further, the learned Magistrate has conceded that the statement of accused No. 5 who pleaded guilty to the charge and was initially tried jointly with the other co-accused cannot affect the other co-accused because after this plea of guilt he ceased to be jointly tried as soon as he was convicted. Therefore, it is obvious that whatever statement made by accused No. 5 could not be used against the other co-accused and was not binding on them. In spite of that, it appears that the learned Magistrate has inconsistently relied on the statement of the said accused No. 5 to invoke the remaining original accused who are the Respondent in this case in the commission of the alleged offence.
6. The submissions of Mrs. Keluskar, although factually correct does not deserve acceptance. It is true that the retraction of the statements given by the accused before the Customs authority was done by them after about six years. But the fact remains that this retraction was on the first available opportunity when they were taken before the trial Magistrate and were really free to make such statements. Therefore, the question of this delay should not defeat the circumstance of the accused-respondents having not maintained their statements recorded by the Customs authorities. Further, the perusal of the impugned judgment passed by the learned Additional Sessions Judge clearly shows that the learned Sessions Judge found fault in the judgment passed by the learned Additional Chief Metropolitan Magistrate for obvious errors committed by him under the law while appreciating the factual evidence available. The learned Sessions Judge has taken exception to the fact that the learned Additional Chief Metropolitan Magistrate has unduly put the statements given by the remaining accused-respondents on par with the statement of accused No. 5 and at the same time for having read the statements of the whole group of the accused instead of separately scrutinizing each of the statement, recorded from them. The learned Magistrate overlooked the fact that the evidence given by the three allegedly independent witnesses was totally insufficient to establish any case directly involving the accused - respondents in the smuggling of the goods from Dubai so as to base their conviction irrespective of the alleged statements recorded by the Customs Officers from the accused-respondents. On going through the statements of these three witnesses, viz. P.W. 1 Bapardekar, P.W. 2 Takmaley and P.W. 3 Tarkhadkar, the only relevant facts which could be ascertained in this case with reference to the documents produced by the prosecution were that on 30th May, 1972 Bapardekar noticed the vessel 'Vasanti Prasad' in Manori creek and when he entered into the vessel, he found original accused No. 5 only. The second fact which arose is that Bapardekar noticed 20 packages containing articles of foreign origin in an abandoned vessel near the Manori bunder and the third fact is that the vessel 'Vasanti Prasad' shows that the accused-respondents were the Khalashi's of that vessel. On the basis of these three facts, it was obviously impossible to connect any of the accused-respondents with the smuggling of the goods from Dubai by using the vessel 'Vasanti Prasad". As far as the statements of the accused-respondents recorded by the Customs Officers, some of them under Section 107 and some under Section 108 of the Customs Act and the fact that the statements were retracted by them, it was not permissible to the learned Magistrate to rely on the said statements without corroboration. This corroboration has been based only on the evidence of the independent witnesses. Further, the statement of each of the accused-respondent in this case could not incriminate or bind upon the other co-accused and at the most, its effect in respect of the other co-accused would not go beyond the purview of Section 30 of the Evidence Act. According to the said Section 30 of the Evidence Act, the statement of a co-accused can be used only to lead an assurance to the conclusion to be drawn on the strength of the rest of the evidence. In the instant case, it is seen that apart from the statement of the accused there was no other corroborative evidence from independent sources to support the same. It is no doubt that according to some judicial pronouncements, retracted convessions have been admitted as the sole basis of conviction but these pronouncements should be understood on the facts and circumstances of each case. It is a well settled proposition that when the evidence available is the one based on confessional statements which are retracted, the rule of prudence demands that the trial court should try to find some corroboration of facts mentioned in the confessional statements from independent sources. This corroboration need not be concerned with detailed aspects of the statements being sufficient or broadbased corroboration of the facts mentioned by the parties while give such confessional statements. In the instant case, in view of the fact that the statement of the independent witness have not brought any material facts or circumstances incriminating the accused-respondents or directly involving them in the said offence, the only piece of evidence which remained to be scrutinized consists of statements recorded by the Customs Officers from the accused-respondents under Section 107 and 108 of the Customs Act. The learned Sessions Judge in this respect has elaborately and in detail analysed the said statements and has rightly came to the conclusion that all these statements with exception of statements recorded from the accused No. 2 all these statements were either exculpatory or in the nature of exculpatory ones. He has minutely dealt with the statements of accused-respondent Nos. 3, 4, 7, 8, 9, 10, 11, 12 and 13 and rightly observed that none of these statements show that the accused knew that they were taking the vessel to Dubai when they started their voyage from India or that the articles taken by them in the vessel were for export. Similarly, the said statements do not justify the conclusion that on their return journey, the said accused-respondents were fully aware that the packages or parcels which they had loaded in the vessel and brought to India were containing contraband goods. Being so, the said statements which were retracted without any further corroboration from independent sources, should not have been accepted by the learned Magistrate to base his finding regarding the conviction of the accused-respondents in respect of the offences under with which they were charged. As far as original accused No. 2 is concerned, his statement by itself shows that he was knowing that the packages or parcel loaded in the vessel were meant to be exported to Dubai and on the return journey of the vessel, the articles loaded in the same vessel were contraband goods. The said statement is no doubt an inculpatory statement, but since the said accused retracted the said statements, the learned Magistrate could not rely on the same once the independent witnesses had not been able to bring any support through relevant circumstances to substantially co-relate the said statement of the accused. However, even in respect of this accused No. 2, this Court was told that he has already expired and even assuming, therefore, that the responsibility of accused No. 2 should have been held as proved or established, it is obvious that this prosecution was deemed to be treated as abated and dropped on account of his death. Mrs. Keluskar has also urged that even conceding that the evidence against the accused-respondents as far as offences under the Customs Act could not be said as proved in view of the retraction of their confessional statements, still the offence under Section 5 of the Imports and Exports (Control) Act should be deemed as having been committed by the said accused-respondents. However, I am unable to accept this submission of Mrs. Keluskar for the simple reason that the commission of this offence is directly connected with the commission of the offences under the Customs Act. Once it is held that the finding of the learned Sessions judge that the forcible statements after being retracted could not be a sound and safe basis for the conviction of the accused-respondents for the aforesaid offences, it is obvious that the offence under Section 5 of the Imports and Exports (Control) Act, 1947 could not be said as arising at all and thus very Act does not seem to be attracted in this case. In my view, the learned Sessions Judge was right and justified in his findings which are no doubt sound as per the facts available and the relevant legal provisions to be applied in the special circumstances arising out of this case. Hence, I see no reason to interfere with the impugned judgment of the learned Sessions Judge which in my opinion cannot be said to have caused any grievance to the appellant and is thus to be fully affirmed. In this view of the matter, the appeal is dismissed, the judgment of the learned Sessions Judge is upheld and the acquittal of the accused-respondents is hereby maintained. Order accordingly.