Mridula Bhatkar, J. - (1.) THE appeal is directed against the judgment and order of acquittal dated 17 -1 -1994 passed by the learned Metropolitan Magistrate, 8th Court, Esplanade, Bombay, thereby acquitting the respondent from the offences punishable under Section 135{1)(a)(i) and 135(1)(b)(i) of the Customs Act, 1962 and Section 5 of the Imports and Exports (Control) Act, 1947. It is the case of the prosecution that the appellant was working as an Assistant Collector of Customs (Preventive Department), Bombay at the relevant time. He had received a secret information on 6 -5 -1987 that one msv Rajendra Jyoti, PSR 695, a cargo vessel travelling from Sharjah to Mumbai was carrying contraband gold sealed in the vessel or in the luggage of the Sailors or the crew members. The respondent No. 1, namely, Shri Ebrahim Essa Sodh, was the Captain (tindle) of the vessel and 12 crew members were deployed at the relevant time on the said vessel, The officers of the customs went to the vessel and all the crew members including the respondent No. 1 were called. The information, received by the complainant was disclosed to them. However, the respondent No. 1 and the crew members feigned ignorance about carrying such contraband gold. Thereafter, the country craft was searched on 8th, 9th and 10th May, 1987 by the customs officials in the presence of Panchas. Nothing was found on the vessel or in the luggage of the respondent or the crew members. The respondent was thoroughly interrogated and finally, he admitted that the contraband gold was carried in the vessel but he threw the said gold as soon as the vessel arrived at Hay Bunder to avoid detection by the customs and also with a view that some gold could be retrieved later by him. He showed the area where he dumped the gold in the sea. The customs officials carried out combing operation in the area of the sea where the gold was dumped as per the information of the respondent. The operation was successful on 10th May, 1987 as it resulted into recovery of 48 gold bars in a tin container, totally weighing 5596.800 gms, then valued at Rs. 9,57,052.80. The said gold bars were seized under panchanama. However, as per the information given by the respondent that he had dumped in all 53 gold bars of 10 tolas each, the customs officials again, on the next day, conducted a search and found 5 gold bars of 10 tolas each, which were slipped out of the container. They were also seized under panchanama on 11 -5 -1987. According to the prosecution, the said gold was smuggled into India from Sharjah and, therefore, it was confiscated under the Customs Act, 1962. The total gold was valued at Rs. 10,56,745.80 at the international market. In the course of investigation, a statement of the accused who confessed about the dumping of the 53 gold bars of 10 tolas each in the sea was recorded under Section 108 of the Customs Act. The cargo bags in which the gold bars were seized in which the they were carrying wet dates were also shown and that was also seized by the customs. Statements of all the 12 crew members were also recorded under Section 108 of the Customs Act, who have stated that they were with the respondent threw gold bars in the sea. The accused was thereafter arrested under Section 104 of the Customs Act on 12 -5 -1987 and was produced before the JMFC and sent to the judicial custody. A complaint was presented before the learned Judge on 7th June, 1988. The Additional Chief Metropolitan Magistrate, 8th Court, Esplanade, framed charge on 10 -7 -1989 against the respondent under Section 135(1)(a)(i) and 135(1)(b)(i) of the Customs Act and under Section 5 of the Imports and Exports (Control) Act.
(2.) THE prosecution in support of its case has examined 5 witnesses, namely, Akhilesh Kumar (PW1) who was an intelligence officer at Hay Bunder, Narendrakumar Kasturilal Punjabi (PVV2) who was working as Superintendent, Rummaging and Intelligence, Shah Alam Qureshi (PW3), a panch of seizure panchanama, Narendra Dayaram Koteja (PW4) another panch for repacking of the gold ornaments and Purushottam Dattatraya Kulkarni (PW5), who was a customs officer. Learned Prosecutor has submitted that the judgment of acquittal passed by the learned Judge is erroneous, illegal and is to be set aside. The evidence of PW1 Akhilesh Kumar and PW2 Narendrakumar Kasturilal Punjabi should have been accepted fully by the learned Judge. PW1 Akhilesh Kumar had received the information respect of the vessel msv Rajendra Jyoti that it was carrying contraband gold. On receipt of the information on 6 -5 -1987, immediately he along with the other customs officer went to the vessel and they carried out the examination of the vessel so also they interrogated the respondent and other crew members. She argued that in searching interrogation of the respondent, ultimately, he made statement disclosing that he threw 53 gold bars in the sea. The learned Counsel submitted that pursuant to this information, gold was actually recovered. The fact of recovery was sufficient to prove guilt against the respondent. The seizure was made under panchanama, which is marked at exhibit P1 and also exhibit P2. She further submitted that the evidence of PW2 Narendrakumar Punjabi, who corroborated fully with the evidence of PW1 Akhilesh Kumar should have been given weightage completely in favour of the prosecution while assessing his evidence. Both the witnesses have stated that in the first attempt, initially they found 48 gold bars in the tin container on 10 -5 -1987 and thereafter as five gold bars were also less, as per the information given by the respondent, second search was carried out and on the next day i.e., 11 -5 -1987, the five gold bars were recovered from the sea which is very difficult to recover, if dumped in the sea. A fact of recovery of goods from the sea, the place pointed out by the respondent, itself establishes the possession of the contraband, the knowledge of it and the incriminating role played by the respondent. She submitted that the learned Judge has committed an error in discarding the evidence of statement of the respondent - accused recorded under Section 108 of the Customs Act. She challenged the judgment of the trial Court as it is contrary to the legal position which is laid down u/s 108 of the Customs Act. She submitted that the Customs Officer is empowered to record the statement of a person which includes an accused also. Such statement of the accused may be a confession but is admissible in evidence as the customs officer is not a police officer.
(3.) IN support of her submissions, she relied on the decision of the Supreme Court in the case of K.I. Pavunny v. Asstt. Collector (HQ), CE Collectorate, Cochin - : 1997 (69) ECR 209 (SC) : 1997 (90) E.L.T. 241 (S.C.); the decision of Calcutta High Court in the case of Extrusion v. Collector of Customs - : 1994 (70) E.L.T. 52 (Cal.); and of Customs, Excise & Gold (Control) Appellate Tribunal, New Delhi in Chander Kant Modi & Ors. v. C.C., Delhi - : 2001 (132) E.L.T. 375 (Tri. -Delhi).;