- (1.)THE State of Maharashtra, at the instance of the Customs Authorities, has filed this appeal, which is directed against an order of acquittal dated 4-1-1984 passed by the learned Chief metropolitan Magistrate, 8th Court, Esplanade, Bombay, in Case No. 60-CW of 1983.
(2.)I have heard Mr. Kothari, learned Public Prosecutor and Mr. Gupte, learned Counsel appearing on behalf of the Respondent. Mr. Kothari submits that the learned Magistrate has acquitted the accused in this case on the ground that the Accused No. 1 is absconding, Accused no. 3 has been discharged and the evidence of the Customs Officer is insufficient for the purpose of convicting the present accused. The restricted submission of Mr. Kothari is that the present accused was alleged to have been instrumental in keeping a consignment of contraband in the house of his father-in-law, who is the Original Accused No. 1. After the contraband was seized, the accused persons were arrested and a statement under Section 108 of the Customs Act was attributed to the present accused. Mr. Kothari relies on that statement and he submits that the court ought to have totally disregarded the retraction made by the accused, because such retractions are routine and that a conviction was certainly possible in so far as the seizure of the goods was concerned and the circumstance that the accused No. 1 is the father-in-law of the present accused No. 2 fully supports what is mentioned in the statement under Section 108 of the customs Act. This position is violently contested by Mr. Gupte, learned Counsel appearing for the accused, who submits that it is well-settled law that a statement which has been retracted cannot form the solitary basis of conviction. He submits that the evidence of the officer does not in any way implicate this accused, who was admittedly in prison throughout and merely because some other person might have alleged that the contraband was kept there by this accused, would not in any way be sufficient for the purpose of involving him. Mr. Gupte further points out that if the statements of the order accused are scrutinised it will be seen that the goods apparently belonged to the Original Accused No. 3 and in this view of the matter it would be a manifest injustice to reverse the order passed by the learned Metropolitan Magistrate.
(3.)THE order of the learned Metropolitan Magistrate is a considered order and it is difficult to find fault with the reasoning. The position in law as enunciated by the learned Metropolitan magistrate in the order is, in fact, correct and cannot be faulted.