- (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. The prosecution case, in brief, is as follows : - Respondent No. 1 was working as Customs Officer. on 17th October, 1977 the ship M. V. Akbar which had arrived from Persian Gulf port was berthed at 18 Indira Dock. In the evening Respondent No. 1 went to the ship in plain clothes. Respondent No. 1 came down from the ship and was proceeding towards Mole station and was carrying an Air India Bag. Bapu Laxman (PW 1), a Customs Jamadar, accosted Respondent No. 1 on suspicion and stopped him at some distance. On enquiry Respondent No. 1 told the Jamadar that he was carrying cassette tapes, some films and a tin of toffee in the hand bag. Respondent No. 1 refused to open the bag and tried to escape. Bapu Laxman brought Respondent No. 1 upto the gangway and sent for Mirji (PW 3), Superintendent of Customs. Within a short time Mirji came. The Jamadar told him that Respondent No. 1 was carrying gold. After showing some hesitation and praying for mercy Respondent No. 1 admitted that he had gold with him. Immediately, Mirji went to 'B' Division Office and informed the Assistant Collector, Shri Alimchandani. Respondent No. 1 was taken to the office of 'B' Division and in presence of two panaches person of the Respondent No. 1 was searched. A cloth pouch was tied around the waist underneath the cloth which contained six bars of gold of 10 tolas each bearing foreign markings. Besides four recorded cassette tapes, one film and a tin of toffee of foreign origin were found in the bag. Two diaries and identity care were found on his person. Theses articles were seized under the panchanama Exhibit A at about 9.30 p.m. on the same day. Thereafter Respondent No. 1 was interrogated and his statement under Section 108 of the Customs Act was recorded by Mirji, Superintendent of Customs. The Respondent No. 1 in his statement confessed his involvement in smuggling of the gold. Respondent No. 1 disclosed that Hiralal Khalasi (original accused No. 2) had requested him to smuggle the gold and had promised to pay him money. Respondent No. 1 led the Customs Officers to the cabin of Accused No. 2 on the ship which was found locked and on opening he was found inside. His statement was also recorded. On 12 -6 -79 sample of the gold was taken under the panchanama and it was sent for analysis. The gold that was seized was in the shape of gold biscuits. The Chemical Analyser in his report dated 26 -6 -1979 reported that the samples sent to him were of gold having purity of 99.9 percent. After obtaining necessary sanction to prosecute Respondent No. 1 and the other accused, the complaint was filed and both of them were tried on the charges mentioned above.
(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.;