Bangalore District Court
Deputy Commissioner Of Customs ... vs Aun Mohamed on 9 December, 2024
KABC090001792022
Presented on : 14-12-2022
Registered on : 14-12-2022
Decided on : 09-12-2024
Duration : 1 years, 11 months, 26 days
BEFORE THE SPECIAL COURT FOR ECONOMIC
OFFENCES: AT BENGALURU
Dated this the 9th 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.102/2022
Complainant: Shri. Ratan B.
S/o. B.R. Betegowda,
Aged about 34 years,
The 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. Aun Mohamed
S/o. Mir Safder Hussain,
Aged about 53 years,
R/at. No.44, 1st Floor,
IV Cross, Anepalya,
2 C.C.No.102/2022
Adugodi Post,
Bengaluru - 560 030.
(Reptd. By Sri. SSH., Advocate)
:JUDGMENT:
The complainant/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.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 Exit Gate of the Customs Arrival Hall, KIAL, Bengaluru, on his arrival from Air Asia Flight No.FD-137 from Bangkok to Bengaluru on 13.08.2018. The said accused on being questioned by the complainant officials, he accounted as to carrying one black laptop bag as hand baggage and not carrying any dutiable or prohibited items in the said baggage, in contravention of the Act. The officials suspecting the credence of the accused, on having scanned the said baggage found some dark images. Thereafter, an open examination of the said hand bag, revealed regarding the existence of rectangular shaped item inside the bag by way of concealment 3 C.C.No.102/2022 wrapped with a thick black insulating tape. The said concealment was admitted to be the gold and on cut opening the said wrapped item, they found two gold bars weighing 1 Kg each and another partially cut gold bar weighing 600 grams. The same being examined by the Authorized Gold Valuator, it was found to be gold totally weighing 2600 grams of 24.00 carat i.e., 99.90% purity, the value of the said gold bars was found to be Rs.79,79,400/- 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 form of bars 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 14.08.2018 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 hand bag, 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)(a) & 135(1)(b) 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 4 C.C.No.102/2022 having been produced before this court has been subsequently enlarged on bail by this court. The copies of the complaint and other 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 cash security furnished at the time of enlarging accused on bail.
8. Heard the arguments addressed by learned Spl. PP and counsel for the accused. The Spl. PP in support of his arguments has filed his written arguments.
5 C.C.No.102/20229. 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 13.08.2018 at about 23.15 hours, at KIAL, Bengaluru, the accused having arrived from Bangkok in Air Asia Airlines Flight No.FD-137 had attempted to smuggle the three gold bars by concealing the same in his hand baggage, on being weighed, the same was found to be 2600 grams of gold valued at Rs.79,79,400/- as alleged in the complaint and thereby committed an offence punishable U/s.135(1)(ii) of Customs Act, 1962?
2. What order?
10. The answer of this court to the aforesaid points is as under:
Point No.1: In the Negative
Point No.2: As per final order
for the following:
REASONS
11. Point No.1: It is the case of the complainant that, the accused being the international passenger of Air Asia Flight No.FD-137 arrived on 13.08.2018 at about 23.15 hours, at KIAL, Bengaluru and was found to have attempted to smuggle the gold bars by concealing in his laptop bag and same being found to be weighing 2600 grams of 24.00 carat of gold valued at Rs.79,79,400/- as on the said day thereby the accused has contravened the provisions of Baggage Rules 2016, consequently committed the offence punishable U/s.135(1)(ii) of Customs Act.
6 C.C.No.102/202212. 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 Air Asia Flight No.FD-137 and having arrived from Bangkok at KIAL, Bengaluru on 13.08.2018 so also regarding the accused found to be concealing the three gold bars in his hand baggage by wrapping with tape. The said witness also accounted regarding the extracted contraband being weighed at around 2600 grams of 24.00 carat 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 the arrest being effected by the officials attached to the complainant Department by following due procedure and authorization being given to him to file the instant complaint and also the prior sanction being obtained from the competent Authority.
13. 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. The original sanction order dated 16.06.2021 is marked as Ex.P-1. Ex.P-2 is the complaint, signature of the witness is marked as Ex.P-2(a). Ex.P-3 is the Gold Valuer Certificate dated 14.08.2018. Ex.P-4 is the mahazar dated 14.08.2018. Ex.P-5 is the statement of accused dated 14.08.2014 recorded U/s.108 of the Customs Act. Ex.P-6 is the original arrest memo dated 14.08.2014 duly served upon the accused and Ex.P-7 is the Order passed by Addl.
7 C.C.No.102/2022Commissioner of Customs, Bengaluru in original dated 28.02.2019.
14. The PW-1 has been subjected to cross-examination by the counsel for the accused, wherein, it has been categorically admitted as to the Prl. Commissioner of Customs and Chief Commissioner of Customs are altogether different ranks of the complainant Department. It is also volunteered as to there is no any specific reference in the complaint regarding the Prl. Commissioner of Customs having authorized him to lodge the complaint in the case on hand. It is admitted as to there is no mention in the sanction order at Ex.P-1 regarding the number of gold bars found to be in the possession of the passenger. It is conceded as to the show cause notice along with personal hearing notice issued to accused under the provisions of Customs Act are not produced before this court along with compliant. The suggestions as to the witness was not competent to lodge this complaint in the case on hand and the complaint has been filed frivolously has been denied by the witness.
15. CW-1 the Superintendent of Customs, Bengaluru is examined as PW-3. This witness has also accounted regarding himself having intercepted the accused on 13.08.2018 on having found accused to have attempted to smuggle gold on having searched his hand baggage. So also accounted regarding the weight and value of the gold. The witness has also accounted regarding the mahazar being drawn in presence of two independent witnesses and statement of the 8 C.C.No.102/2022 accused being recorded, the signatures of the witness in mahazar, statement of accused as per Ex.P-4 & Ex.P-5 are marked as Ex.P-4(b) & Ex.P-5(b) respectively.
16. The said PW-3 has been subjected to cross- examination by the counsel for the accused, wherein, he has categorically admitted as to all the passengers are bound to compulsorily fill the Declaration Form regarding carrying dutiable and prohibited goods under the provisions of the Customs Act. It is also admitted as to the passengers baggage should be tallied with that of Boarding pass to identify the ownership of the baggage. It is categorically admitted that the baggage tag as well as Declaration Form pertaining to the accused has not been submitted before this court in the case on hand, the said documents being essential for identification of the passenger. It is also admitted that neither himself nor his colleagues have collected the ID cards of the independent witnesses to Ex.P-4 i.e., seizure mahazar. It is also admitted as to only the passengers or individuals holding the passes are permitted to access the Green Channel Area situated on the Ground Floor of the KIAL, Bengaluru. He has pleaded ignorance regarding the said passes issued to the independent witnesses of seizure mahazar being submitted before this court. He has also admitted as to there is no mention in the mahazar regarding the issuance of said passes to the witnesses to the seizure mahazar. It is also categorically admitted as to there is no mention regarding the serial number of the passenger as per Aircraft Manifest in the Ex.P-4 mahazar. He has deposed as to having not issued notice 9 C.C.No.102/2022 U/s.108 of the Customs Act to the accused prior to recording his statement as per Ex.P-5. It is admitted as to accused not being conversant to read and write in English and Kannada languages. He has pleaded ignorance regarding the endorsement in Ex.P-5 regarding the accused being familiar with English, Kannada and Hindi languages. It is also conceded regarding the statement U/s.108 of the Customs Act of the accused being recorded with the assistance of translator. It is specifically admitted as to the signature of Gold Valuer is not found in the mahazar at Ex.P-4. That apart, the other suggestions as to the accused has been falsely implicated, though he is innocent has been specifically denied by the witness.
17. CW-2 i.e., the then Inspector of Customs, Bengaluru is examined as PW-2. The said witness has also accounted as to the having accompanied PW-3, the accused and other two independent witnesses at the time of mahazar being drawn on 14.08.2018 at the AIU Office, KIAL, Bengaluru. Further, deposed regarding having typed the statement of accused as per Ex.P-5 at the instance of the accused at AIU Room, KIAL, Bengaluru on 14.08.2018. The witness has also accounted as to having typed the mahazar as per Ex.P-4 as deposed by independent witnesses. The witness has identified his signatures on Ex.P-4 and Ex.P-5, they are marked as Ex.P-4(a) and Ex.P-5(a) respectively.
18. PW-2 has been subjected to cross-examination by the counsel for the accused, wherein, it is elicited as to Ex.P-3 10 C.C.No.102/2022 has been typed at AIU Office, situated at 1 st Floor, KIAL, Bengaluru. It is categorically admitted as to the Ex.P-4 and Ex.P-5 were typed by him as per the version of PW-3. He has also deposed as to at the time of typing mahazar at Ex.P-4, except himself, PW-3, accused and two independent witnesses, there were no any other persons present at the said place. The other suggestions as to the witness is deposing falsely at the instance of his superiors has been categorically denied by the witness.
19. CW-4 i.e., witness to Ex.P-4 is examined as PW-4. This witness has accounted as to on 13.08.2018 having been directed by the Customs officials on arrival of Flight bearing No.FD-137 from Bangkok to identify the passenger, who picks up the baggage containing dark object, as noticed in the scanning machine. He has also deposed regarding intimated the Customs officials regarding the accused having picked up the baggage and thereafter on open examination of the said baggage, found to have three gold bars totally weighing 2600 grams. The witness has also accounted regarding the mahazar being drawn in his presence and the statement of the accused being recorded by the Customs officials. The witness has identified his signatures on Ex.P-4 and Ex.P-5, the same are marked as Ex.P-4(c) & Ex.P-5(c) respectively.
20. PW-4 has been subjected to cross-examination by the counsel for the accused, wherein, he has admitted as to he is not aware of the contents of Ex.P-4, which is in English language. It is also admitted as to Ex.P-4 was typed by PW-2 11 C.C.No.102/2022 at the instructions of PW-3. He has also conceded as to the ownership of the baggage cannot be ascertained unless the baggage tag and boarding pass are verified.
21. The prosecution could not secure CW-3 despite coercive steps. Hence, CW-3 was dropped from being examined on behalf fo the complainant vide order dated 24.04.2024.
22. 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.
23. 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 bars by concealing the same in his hand baggage. The learned Spl. PP has also emphasized regarding the mahazar and statement of the accused as per Ex.P-4 & Ex.P-5 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 12 C.C.No.102/2022 having attempted to smuggle the gold in form of bars 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. 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 of the country as a whole and thereby posing serious threat to the financial health of the country"
24. 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 13 C.C.No.102/2022 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.
25. 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.
26. The counsel for the accused has emphatically argued that, the accused has been falsely implicated in the case on hand. It is stressed as to Ex.P-1 sanction order is contrary to Section 137(1) of the Customs Act, which only empowers Commissioner of Customs to accord sanction, whereas, Ex.P-1 is sanctioned by Chief Commissioner. As such, it is claimed that the accused is entitled to the benefit of doubt.
27. The mahazar as per Ex.P-4 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 bars from the custody of the accused is unable to be accepted as per the testimony of the PW-3. It has been emphasized as to the testimonies of PW's-2 and 4 are very much contrary to each other in so far as the drawing of mahazar as per Ex.P-4 so also regarding the recording of 14 C.C.No.102/2022 statement of accused as per Ex.P-5. It is also emphasized as to non-furnishing of baggage tag, Aircraft manifest and boarding pass 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 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 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.
"Analysis and Evaluation of Evidence"
28. Having regard to the complaint, evidence on record and arguments addressed by the rival parties as well as the written arguments filed by the Spl. PP this court has to strictly ascertain as to the accused having been attempted to smuggle the gold in the form of bars by concealing the same in his hand baggage and the same was very much seized by drawing 15 C.C.No.102/2022 the mahazar as per Ex.P-4 and the said seizure being established by the complainant to the satisfaction of the court.
29. This court is certainly bound to evaluate the testimony of PW-3 i.e., Superintendent of Customs, who has claimed to have intercepted the accused on 13.08.2018 at 23- 15 hours, in the Customs Arrival Hall, KIAL, Bengaluru and the said official has also claimed to have seized the three gold bars from the custody of the accused by drawing the mahazar as per the Ex.P-4. An anxious examination of the testimony of PW-3 more particularly the examination-in-chief and the cross-examination of the said PW-3. It is relevant to appreciate as to the testimony of the PW-3 in so far as the recovery of so called contraband which was attempted to be smuggled by the accused in the form of bars is unable to be gathered. The testimony of PW-3 as to his colleague PW-2 having typed the Ex.P-4 mahazar at his instructions, so also, the testimony of independent witness PW-4 regarding Ex.P-4 being typed at the instructions of PW-3, very much creates cloud of the suspicion as to the very official PW-3 having drawn the mahazar as per Ex.P-4 and having seized and recovered the gold from the custody of the accused. Furthermore, the witness having admitted regarding the boarding pass, Aircraft manifest and baggage tag of the accused being secured at the time of drawing mahazar, the said documents not being furnished in the case on hand is certainly amounting to be substantial omission.
16 C.C.No.102/202230. Though this court cannot assess the complainant's case solely on the basis of the statement of the accused as per Ex.P-5 which is very much covered U/s.108 of the Customs Act. The said statement as per Ex.P-5 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. Union 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-5 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-5 being read over and explained to accused in his native language.
31. 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 17 C.C.No.102/2022 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.
32. It is also significant to note that the testimony of PW-2 i.e., the official attached to the complainant Department who had typed the Ex.P-4 & Ex.P-5 is also tainted with substantial omissions and contradictions. The testimony of PW-2 more particularly during the course of cross- examination, wherein, he has admitted as to he has typed Ex.P-4 & Ex.P-5 as per the version of PW-3, will certainly have a great relevance in so far as evaluating and assessing the case of the complainant. Furthermore, the PW-2 has deposed as to PW-3 secured independent witnesses, whereas, PW-3 deposes as to his colleagues secured independent witnesses, during the course of mahazar proceedings as per Ex.P-4 is very much a significant aspect amounting to substantial contradiction and improvement in connection to the material fact.
33. In the case on hand, pursuant to the mahazar as per Ex.P-4 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-4 by examining the relevant independent witnesses, though examined PW-4, who has been shown in the mahazar at Ex.P-4, his testimony having not withstood the test of cross- examination by the accused, the testimonies of the PW's-1 to 3 18 C.C.No.102/2022 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.
34. 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 bars as per Ex.P-7 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 Addl. Commissioner of Customs, who has passed an order of confiscation as per Ex.P-7 neither by summoning the proceedings of Ex.P-7 through this court or by examining the said Addl. 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.
35. The arguments of the Spl. PP as to the statement of the accused U/s.108 of the Act as per Ex.P-5 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 19 C.C.No.102/2022 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.
36. It is pertinent to note that in the case on hand, though the complainant Department officials PW's-1 to 3 have 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.
37. 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 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.
20 C.C.No.102/202238. 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-4 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.
39. The arguments of the learned Spl. PP as to the boarding pass, Aircraft manifest and baggage tag cannot be construed to be significant, as the mahazar at Ex.P-4 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 ownership of hand bag, which contained the so called smuggled contraband by establishing the ownership of the said hand baggage on the basis of the serial number as could be gathered from boarding pass, Aircraft manifest and baggage tag, 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.
"Conclusion"
40. 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 21 C.C.No.102/2022 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 substantial improvements, omissions and contradictions. As such, this court without any hesitation answers the instant Point No.1 in the Negative.
41. Point No.2: In the light of the discussion and findings, assigned supra while appreciating the Point No.1, this court proceeds to pass the following:
ORDER Acting under section 248(1) of Cr.P.C., the accused is acquitted of the offence punishable under Section 135(1)(ii) of the Customs Act, 1962.
Consequently, the accused is set at liberty.22 C.C.No.102/2022
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 9th day of December 2024) (VISHWANATH C GOWDAR) Presiding Officer, Spl. Court for Economic Offences, Bengaluru.23 C.C.No.102/2022
:ANNEXURE:
List of the witnesses examined on behalf of the Complainant:
PW-1 : Sri. Ratan B
PW-2 : Sri. Ravindra Kumar
PW-3 : Sri. H.G. Ramachandra
PW-4 : Sri. Dyavappa V
List of the Documents exhibited on behalf of the Complainant:
Ex.P-1 : Original Sanction Order
Ex.P-2 : Original Complaint
Ex.P-3 : Gold Valuation Certificate
Ex.P-4 : Mahazar
Ex.P-5 : Statement of Accused
Ex.P-6 : Arrest Memo
Ex.P-7 : Order passed by Addl. Commissioner
of Customs
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.102/2022
09.12.2024 Complt.: Spl. PP Accd: SSH 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 offence punishable under Section 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.