- (1.) Heard learned Special Public Prosecutor for the appellant and learned Counsel for the respondent.
(2.) This is an appeal preferred against the judgment and order dated 23.03.2011 rendered in Criminal Case No. 1/C/2005/A passed by learned Chief Judicial Magistrate, South Goa, Margao, thereby acquitting the respondent of the offence punishable under Section 135(1)(c)(ii) of the Customs Act, 1962.
(3.) Briefly stated, the facts of the case are as under: On 14.07.2003 at about 14:00 hours when the respondent accompanied by two ladies namely, Smt. Shobha Khira and Ms. Tina Khira had checked in to board Indian Airlines Flight to Sharjah, officers of the appellant having received prior information intercepted the respondent and the two ladies accompanying him in order to find out if they were carrying with them any goods in contravention of the provisions of Section 135(1)(c)(ii) read with Section 113(d) of the Customs Act. Upon interrogation, it was noticed that the respondent and the said two ladies had already checked in their baggage but, were also carrying with them one hand bag each as cabin baggage. When the checked in baggage and cabin baggage were subjected to search, it was found that there were some foreign currencies kept in the bag belonging to the respondent. On personal search of the respondent, it was further found that the respondent was carrying with him in the wallet also some foreign currencies. The foreign currencies consisted of various currency notes of different denominations of different countries. They were all counted and their panchanama was prepared and these foreign currency notes were of the value equivalent to Indian Rupees of 8,51,298.65 and also of Indian Rupees 2,54,875/-. Some Indian Currency was also found from the bag belonging to the respondent and it was of the value of Rs.39,900/-. Statement of the respondent was recorded as per the provisions of Section 108 of the Customs Act on 14.07.2003. Another statement of the respondent was recorded under Section 108 of the Customs Act on 15.07.2003. The respondent admitted that he had brought in some foreign currency notes without declaration. These statements further disclosed that the respondent was exporting more foreign currencies than what he had brought in the Country. According to the appellant such an act on the part of the respondent was in contravention of Regulations 3(1)(a) and 7(3)(4) of the Foreign Exchange Management (Export and Import of Currency) Regulations, 2000 (for short, 'FEMA Regulations') and therefore, amounted to evasion of duty under the provisions of the Customs Act. The foreign currencies, according to the appellant, were also liable to confiscation under Section 113(d) of the Customs Act. After completion of the investigation, a complaint was filed against the respondent for prosecuting him under Section 135(1)(c)(ii) of the Customs Act. Learned Chief Judicial Magistrate framed charge for the offence punishable under Section 135(2) of the Customs Act and proceeded with the trial upon the respondent pleading not guilty to the charge so framed against him. Upon consideration of the evidence of the prosecution, the statement of the respondent under Section 313 Cr.P.C. and arguments of both sides, the learned Chief Judicial Magistrate found that the appellant miserably failed to prove the guilt of the accused under Section 135(1)(c)(ii) of the Customs Act and acquitted the respondent of the said offence by order passed on 23.03.2011. Not being satisfied with the same, the appellant is before this Court in the present appeal.;