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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 227 OF 1999
Union Of India At The Instance Of Assistant
Director, DRI, Mumbai .. Appellant
Ms. Ruju Thakkar a/w Mr. Priyanshu Doshi and Mr. Rohit Chitiken, Advocates for Appellant.
Ms. Manisha R. Tidke, APP for the State. ...................
ORAL JUDGMENT
1. Heard Ms. Thakkar, learned Advocate for Appellant and Ms. Tidke, learned APP for the State. None appears for the Respondent No.1.
2. This Criminal Appeal challenges judgment of Acquittal dated 14.10.1998 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Mumbai in CC. No. 198/CW/88. Appellant is the Union of India on behalf of the Directorate of Revenue Intelligence (for short “DRI”). It is filed in 1999 and has reached final hearing today. Despite none representing the Respondent, I have perused the impugned judgement and heard the Appellant.
3. Respondent No.1 – Smt. Ameenabi w/o Late Haji Mohammed Merchant is the original accused who was tried for 1 of 11 offences punishable under Section 135 (1) (b) read with Section 135 (1) (I) of the Customs Act, 1962 and Sections 85 (1)(ii) and 85 (1)(a) read with Section 8(1) of Gold Control Act, 1968.
4. By virtue of the impugned judgement dated 14.10.1998, the learned Trial Court passed order of acquittal of Respondent No.1. For convenience accused shall be referred to as Respondent No.1.
5. Before I advert to the merits and submissions advanced by the learned Advocate for Appellant and learned APP, it would be appropriate to briefly refer to the relevant facts which are as under:-
5.1. On 04.02.1988 pursuant to information received by the office of Appellant, the residential flat premises where Respondent No.1 was residing was searched. Information received by DRI was that one Mr. Afzal Weldon of Weldon Construction having his residence at 3rd floor, Terrace building, Lady Jamshetji Road, Mahim, Mumbai – 400 016 was indulging in smuggling of gold in India and storing gold at several places. Information that was received was that residence of Respondent No.1 at Room No.3, First Floor, Arab Mazil Building, Sonawala Lane, Mahim, Mumbai – 400 016 was one such place where the gold was kept by Mr. Afzal Weldon. Respondent No.1 – Ameenabi is the elder sister of Mr. Afzal Weldon. She was a resident of Hyderabad, but after the demise of her husband, she alongwith her children shifted to Mumbai. 2 of 11
5.2. Prosecution raided her residence alongwith panchas and carried out search and seizure operation. According to prosecution after she opened the main door, on seeing the DRI officers, she locked herself in the bedroom and refused to open the bedroom door despite repeated requests made by the DRI officers. The officers noticed that she had thrown some packets out of the bedroom window and some officers went and retrieved those packets which contained gold bars wrapped in newspaper.
5.3. Two packets containing gold bars were retrieved. Thereafter Respondent No.1 opened the bedroom door. According to prosecution, she admitted that she had thrown those packets. On search of the bedroom, DRI officers recovered 3 more packets of gold bars wrapped in newspaper alongwith photograph of Mr. Afzal Weldon, visiting card of Weldon Construction and one telephone diary. All five packets were opened and examined in presence of panchas at the said incident spot. Each packet contained 20 bars of gold, each bar weighing 10 tolas totalling to 100 bars of gold collectively weighing 1000 tolas (11,660 grams). Since Respondent No.1 did not produce any document to show authorized possession or acquisition of the gold bars, they were seized and confiscated under the Customs Act, 1962 (for short “Customs Act”). Four sample bars were drawn and marked by DRI officers. In the statement of Respondent No.1 recorded under Section 108 of the Customs Act she stated that after her husband’s death she and her 3 of 11 family (children) were looked after by her brother Mr. Afzal Weldon. It is stated in her statement that her brother Afzal informed her that he would be sending his man with packets containing gold bars for keeping at her residence. According to DRI, in the follow up action residential premises of Mr. Afzal Weldon in Terrace building, Mahim was also searched but nothing incriminating was recovered. Respondent No.1 was arrested on 04.02.1988 and was in judicial custody until 26.02.1988 when she was granted bail. By virtue of the impugned judgment, learned Trial Court has acquitted her.
5.4. Being aggrieved DRI has filed the present Appeal against acquittal. The impugned judgment is appended at page 53 of the Appeal. I have perused the same.
6. Ms. Thakkar, learned Advocate for the Appellant- Union Of India (DRI) would submit that the impugned judgment exonerating Respondent No.1 is challenged on several grounds. At the outset, she would submit that the contraband gold was admittedly recovered from the residence of Respondent No.1 in her own presence and presence of the panchas. She would submit that four sample gold bars retrieved from the contraband seized were sent to the Government of India Mint for assay. She would submit that the assay report certified that the said gold bars were found to be of 999.0, 999.1, 999.1, 999.[3] fineness.
6.1. She would submit that the seized gold was primary gold and 4 of 11 import of gold without permission of the Reserve Bank of India was prohibited under Section 13 (1) of the Foreign Exchange Regulation Act, 1973 read with Notification issued under the Customs Act and prohibition imposed under Section 111 of the Customs Act. She would submit that import of gold without permission was also prohibited under the Imports (Control) Order 17/55, issued under Section 3 of the Imports and Exports (Control) Act, 1947 and most importantly under Section 8 (1) of The Gold (Control) Act, 1968 no person other than a licensed dealer was authorized to acquire, purchase, receive, possess, keep in custody or control any primary gold. She would submit that Respondent No.1 failed to provide any documentary evidence to show authorized possession of the said gold bars.
6.2. She would vehemently submit that Respondent No.1 transgressed the aforesaid statutory provisions and was found admittedly in unauthorized possession of unaccounted gold which she had knowledge and reason to believe that it was liable for confiscation under Section 111 of the Customs Act, 1962 and she is therefore liable for the offences punishable under Section 135 (1)(b) and 135 (1)(i) of the Customs Act. She would submit that having possession, custody and control of 1000 tolas of primary gold was in contravention of the statutory provisions of Gold (Control) Act, 1962 and liable for conviction under the said Act. 5 of 11
6.3. She would draw my attention to the statement of accused under Section 108 of Customs Act in which she has stated that after her husband’s death she and her family (children) were looked after by her brother Mr. Afzal Weldon and would contend that her act of harbouring the contraband gold was a quid pro quo measure to reciprocate the obligation of her brother. She would also draw my attention to statement recorded by Respondent No.1 that her brother told her that he would be sending his man with the packet containing gold bars for storage at her residence. She would submit that it is stated by her that she agreed to keep the gold bars in her premises as Mr. Afzal Weldon was meeting all her and her family's expenses. She would submit that when she was apprehended she attempted to conceal and destroy evidence by throwing away two packets each containing 20 bars of gold which were retrieved by the Officers of DRI and she confessed to have indulged in such an act.
6.4. She would submit that accused did not have any license or authority to possess 100 gold bars weighing 1000 tolas and thus violated the provisions of Section 111 of Customs Act. She would submit that Panchnama contemplated under Section 108 of Customs Act was drawn in the presence of panchas and the contraband goods i.e. gold bars were seized. After obtaining sanction, prosecution was launched against her. She would submit that her statement recorded below Exhibit P-9 has been duly corroborated by the evidence on 6 of 11 record and she was liable for conviction for having possession of unauthorized contraband gold bars weighing 1000 tolas i.e. 11,660 grams and had complete knowledge about possessing the same. She would submit that testimony of PW-1 and PW-2, the Officers of DRI has adequately proved the above search and seizure of contraband gold from her custody despite which the learned Trial Court has not found favour with the prosecution case and concluded that conscious possession of the contraband gold in her possession is not proved.
6.5. She would submit that findings returned by the Trial Court that conviction based merely on the confessional statement of the accused which has been subsequently retracted by her has not been proved as an incorrect finding. Hence, she would submit that impugned judgment of the Trial Court exonerating and acquitting the accused is required to be interfered with by this Court in its revisional jurisdiction.
7. PER CONTRA, Ms. Tidke learned APP appearing for Respondent No. 2 – State has adopted the submissions made by Ms. Thakkar and after drawing my attention to the judgement of acquittal dated 14.10.1998 persuaded the Court to consider the evidence leading to acquittal of the accused.
8. I have perused the entire record of the case with the able assistance of the learned Advocate for Appellant and learned APP. 7 of 11 Submissions made by them has received due consideration of the Court.
9. Though under the provision of Section 397 of the Code of Criminal Procedure, 1973, The Court cannot embark upon the exercise of re-appreciation of evidence, but in order to decide the challenge to the impugned judgment of acquittal dated 14.10.1998, to that extent case of prosecution and the evidence will have to be seen. Keeping this aspect in mind in the present case it is seen that the entire case of prosecution relies upon the evidence of PW-1 and PW-2 who were the Officers of DRI who carried out the search and seizure operation. PW-1 is the Superintendent of DRI whereas PW-2 is a retired Superintendent of Central Excise who was working as Senior Intelligence Officer with the DRI at the then time. Apart from the deposition of these two prosecution witnesses, no evidence of any other independent or neutral pancha or witness to the search and seizure operation has been led by the prosecution. Both these witnesses are Officers of DRI and therefore if their oral evidence is required to be believed it ought to have been duly corroborated and supported by evidence of independent panchas and witnesses who were present at the time of search and seizure.
10. The learned Trial Court has returned a categorical finding that while prosecuting the case the prosecution tried its level best to find out the panchas and witnesses but they could not be traced and 8 of 11 summons were not served upon them. This finding of the Trial Court is based upon the report filed by the prosecution stating the above reason for not examining the independent panchas and witnesses to the entire search and seizure operation in the present case. In that view of the matter learned Trial Court held that merely on the basis of the statement of Respondent No.1 recorded under Section 108 of the Customs Act as alleged by the prosecution and the evidences of the two prosecution witnesses, the case against the accused for conscious possession of the subject contraband gold is not proved. The learned Trial Court held that prosecution has not established the fact as to whether Respondent No.1 was the sole occupant of the raided premises, rather it has come on record that the subject premises belonged to Mr. Afzal Weldon (brother of accused). The learned Trial Court has held that prosecution has not provided any cogent evidence to prove that accused was occupying the subject premises solely. There are no statements of any of the neighbors or building residents recorded to prove this fact. That apart there were several other women/police woman present at the time of the raid, but statements of none of those present who participated in the entire operation were recorded.
11. In the above background when Respondent No.1 had retracted her confessional statement, it was incumbent upon the prosecution to prove its case beyond all reasonable doubts against the 9 of 11 Respondent No.1. The defence had argued that the confessional statement was recorded under threat given to accused to harm her minor son. That apart, the confessional statement was recorded in English language whereas the accused had knowledge of Urdu language only. The statement is seen to be signed by accused in Urdu. PW-2 has drafted the handwritten statement in English language and claims to have translated it in Hindi language to Respondent No.1. If such was the search and seizure operation, then evidence of independent witnesses and panchas was utmost necessary otherwise the action of the DRI Officers becomes circumspect. Resting the prosecution case only on the basis of confessional statement and the twin depositions of prosecution Officers undoubtedly has fallen short of proving the prosecution case and guilt of Respondent No.1 beyond all reasonable doubts. All these questions are clearly answered by the learned Trial Court in paragraph No. 18 (iii) and (iv) of the judgement in favour of Respondent No.1. For reference the said findings are reproduced below:- “18) (i) XXX
(ii) XXX
(iii) It would thus be seen that there is no prohibition under the
Evidence Act to rely upon the retracted confession to prove the prosecution case or to make the same basis for conviction of the accused. The practice and prudence require that the Court could examine the evidence adduced by the prosecution to find out whether there are any other facts and circumstances to corroborate the retracted confession. It is not necessary that there would be corroboration from independent evidence adduced by the prosecution to corroborate each detail contained 10 of 11 in the confessional statement. The Court is required to examine whether the confessional statement is voluntary, in other words, whether it was not obtained by threat, duress or promise. If the Court is satisfied from the evidence that it was voluntary, then it is required to examine whether the statement is true. If the Court on examination of the evidence finds that the retracted confession is true, that part of the culpatory portion could be relied upon to base conviction. However, the prudence and practice require that Court would seek assurance getting corroboration from otter evidence adduced by the prosecution.
(iv) It is true that in criminal law, as also in civil suits, the
Trial Court and the Appellate Court marshal the facts and reach conclusion, on facts. In a criminal case, the prosecution has to prove the guilt beyond doubt. The concept of benefit of doubt is not a charter for acquittal. Doubt of doubting Thomas or of a weak mind is not the road to reach the result. If a Judge on objective evaluation of evidence and after applying relevant tests reaches on finding that the prosecution has not proved its case beyond reasonable doubt, then the accused is entitled to the benefit of doubt for acquittal. The question then is; whether the learned Single Judge of the High Court has committed any error of law in reversing the acquittal by the Magistrate. Not Every fanciful reason that erupted from flight of imagination, but relevant and germane requires tested. Reasons are the soul of law. Best way to discover truth is through the interplay of view points. Discussion captures the essence of controversy by its appraisal of alternatives, presentation of pros and cons and review on the touchstone of human conduct and all attending, relevant circumstances. Truth and falsity are sworn enemies. Man may be prone to speak falsehood but circumstantial evidence will not. Falsity is routed from Man’s proclivity to faltering but when it is tested on the anvil of circumstantial evidence truth trans.”
12. In view of the above observations and findings, on reading the impugned judgement, I cannot adopt a different view from what is arrived at by the learned Trial Court.
13. The impugned judgment of acquittal of the Trial Court dated 14.10.1998 is upheld. Resultantly the Appeal fails.
14. In view of the above, Criminal Appeal is dismissed. Ajay [ MILIND N. JADHAV, J. ] 11 of 11 TRAMBAK UGALMUGALE