Decided on March 12,1985

Umed Kumar Jain Respondents


K.N. Sarkaria - (1.)THIS Criminal Appeal is from the judgement of acquittal of charge under Section 135(a)(ii) of the Customs Act, 1962, shortly, "the Act".
(2.)THE appellant, Assistant Collector of Customs and Central Excise, Dhubri, lodged a complaint under Section 135 of the Act, alleging that on 16th January, 1973 at about 4 A.M. while the B.S.F. was on patrol duty they noticed one boat about to cross the border into Bangladesh near pillar No. 1042 and on being challenged by the B.S.F. patrol party the boatmen and the occupants of the boat fled away leaving the loaded boat on the border. The boat was found by the B.S.F. party to have been loaded with 150 packets of catechu and they brought the catechu -loaded boat to Dhubri, and on 18th January, 1973 the contraband was seized. They also recovered from the boat one challan dated 15th January, 1973 and a money receipt for the catechu in the name of one Umed Kumar Jain of Tinsobigha. Public notice inviting claims to the boat and the catechu having been issued, the respondent Umed Kumar Jain claimed the boat and the catechu and after departmental adjudication those were absolutely confiscated and a fine of Rs. 2,000 was imposed on the accused -respondent under Section 114 of the Customs Act, and the boat was also confiscated under Section 115 of the Act and sold in public auction for Rs. 262 and appropriated by the Central Government. After obtaining sanction from the Collector of Customs and Central Excise, Shillong the instant complaint was lodged. The seizure memo was annexed as annexure A. The adjudication order dated 26th September, 1973 was annexed as annexure B and the sanction order was annexed as annexure C to the complaint.
At the trial before the Magistrate, prosecution examined two witnesses while the defence examined three witnesses. On the basis of the evidence on record the learned Magistrate having acquitted the accused -respondent.

(3.)MR . R.P. Kakati, the learned Central Government Standing Counsel for the appellant submits that P.W. 1 who was the Inspector of No. 82 B.S.F. having clearly deposed that the boat attempted to enter the territory of Bangladesh after crossing the Indian territory through the river Brahmaputra' near Pillar No. 1042 and when asked to moor the boat, the boatmen, instead of doing that, increased its speed and began to row towards Bangladesh and as the patrol boat chased them, the occupants of the boat jumped into the river and lied away and the party took possession of the boat which was loaded with 150 packets of catechu and brought it to Dhubri at about 10 O'clock and seized the boat and the contraband. The learned trial Court, Mr. Kakati submits, ought not to have disbelieved the prosecution witnesses. Counsel submits that if the catechu was not taken for being smuggled out to Bangladesh there would be no reason for it being taken near the border. According to him the plea that the boat was proceeding to Tinsobigha to deliver cargo to the accused -respondent ought not to have been believed as the boat already crossed the Tinsobigha Char and reached near the Bangladesh border. Besides, Tinsobigha being only a char islet in the river there was no market for 150 packets of catechu and the natural conclusion was that it was meant for being smuggled out to Bangladesh.

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