ASSISTANT COLLECTOR OF CUSTOMS Vs. KUNHI KORATH BALAN

JUDGEMENT

(1.) RESPONDENT No. 1 Kunhi Korath Balan was tried along with another accused Harilal B. Khalasi on charges under Sections 135(1)(a)(ii), 135(1)(b)(ii) 136(1) of the Customs Act and also under Sec. 5 of the Imports and Exports Control Act, 1947, on a complaint filed by the Asstt. Collr. of Customs, Bombay, being Criminal Case No. 387/CW of 1978 by the Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, Bombay. The learned Magistrate found Respondent No. 1 guilty and sentenced him to suffer rigorous imprisonment for 18 months and to pay fine of Rs. 1,000/ - in default to suffer further rigorous imprisonment for three months each under Sections 135(1)(a)(ii), 135(1)(b)(ii) and 136(1) of the Customs Act and also sentenced him to suffer rigorous imprisonment for three months and to pay a fine of Rs. 500/ - in default to suffer rigorous imprisonment for three months under S. 5 of Import and Export Control Act and directed that the substantive sentences to run concurrently.

(2.) BEING aggrieved by the judgment and order of conviction and sentence passed by the Additional Chief Metropolitan Magistrate, Respondent No. 1 preferred an appeal being Criminal Appeal No. 43 of 1980. The learned Additional Sessions Judge, Greater Bombay, by his judgment and order dated 22nd January, 1982 allowed the appeal, set aside the conviction and sentence and acquitted Respondent No. 1 of the various offences with which he was charged and convicted by the trial Court. This appeal is directed against the acquittal of Respondent No. 1.

(3.) WHEN examined under Section 313 of the Code of Criminal Procedure, the Respondent No. 1 admitted that he had gone to the ship and while he was returning he was accosted by the Customs Jamadar, Bapu Laxman and at that time he was carrying Air India bag with him. He stated that he had visited the ship in search of one Ibrahim who was suspected to indulge in smuggling of opium. He denied that his person was searched and six gold biscuits were recovered from him and the other articles were found in his hand bag. He denied that the panchanama was made. According to Respondent No. 1 Bapu Laxman and Shri Alimchandani were not on good terms with him. At the instance of Alimchandani he was falsely involved in the case. He contended that his statement under Section 108 of the Customs Act was obtained under threat and coercion and it was not a voluntary statement. He retracted all the confessional statement at Exhibits C, C1, C8 and C3 recorded under the Customs Act. In addition to the oral statements Respondent No. 1 filed a written statement wherein the contended that the search was not proved and no list of articles was prepared as required by law. He also made a grievance that the prosecution did not examine panch witnesses to prove seizure of gold bars and other articles from his possession. The prosecution also did not examine the Investigating Officer, Alimchandani who was on inimical terms with the Respondent No. 1.