- (1.) Being aggrieved by and dissatisfied with the order of acquittal passed by Sri K.D. Bhutia, Metropolitan Magistrate, 17th court at Bankshall Court, Calcutta in Complaint Case No. 1248/89 dated 08.01.2002 under Section 135(1) (b) (i) of Customs Act petitioner, Deputy Commissioner of Customs preferred the instant appeal against the order passed by the Trial Court.
(2.) Shortly put the petitioner s case is that Anoop Swarup, Assistant Collector of Custom Preventive, after obtaining sanction from the concerned authority of custom has filed the case against Mahendra Singh Arora, proprietor of M/s. Premier Straps B-7/14 Radha Bazar Lane, Kolkata 700001 and M/s. Gurunanak Watch Co., A-20, 14 Radha Bazar Lane, Kolakta 700001 for possessing foreign made wrist watch movement illegally. On the basis of the source information and on the basis of such authorization order Customs Officials conducted a raid in the shop of the accused situated at Radha Bazar Lane on 05.12.1988 and in the said raid the officials had seized 2292 pieces of wrist watch movement of Russian, Swiss and Japanese made worth Rs. 2,33,845/- from the false camber of ceiling and boxes. On demand the accused failed to produce any document to prove his possession of the same. That apart the officials seized Rs. 31,333/- from the almirah. The officials seized the same is belief that the same is to be the sale proceed of the accused smuggled wrist watch movement. It is the further case of the prosecution is that the customs officials are conducted a raid in the house of the accused beateel at 26/C, Adhirpukur Road, 2nd Floor, Kolkata 700019 on 05.12.1988 on the basis of search authorization No. 204/P and recovered 179 pieces of wrist watch movement of Russian made valued at Rs. 15,215/- under the bed. In this case also accused could not produce any valid document in respect of the possession of the same. On the basis of search authorization customs officials searched the locker No. 417 of Dena Bank, Park Circus Branch standing in the joint names of the accused and his wife Satnam Arora in presence of the accused and two witnesses on 06.12.1988. In the said locker the officials found Rs. 1,00,000/- in cash, bank papers and jewelleries. The official believing the said Rs. 1,00,000/- to be the same proceeds of smuggled wrist watch movement seized under the seizure list. Accused made a statement under Section 108 of Custom Act on 05.12.1988 admitting that the customs officials seized smuggled wrist watch movement which he bought from different broker without any vouchers and bill and Rs. 30,000/- was sale proceed of the smuggled watch movement but he denied having any locker. On 15.12.1988 and 17.01.1989 accused gave a written statement in Hindi and English admitting his guilt. The custom officials got the seized wrist watch movement examined by M/s. Vijoy Watch Industry, Calcutta 700001. According to expert the seized articles are made of Swiss, Russia and France. Thus the accused found guilty and commission of offence under Section 135 (1) (b) of the Customs Act, 1962. Hence the prosecution case. To counteract the prosecution submission defence as it appears from the trend of the cross-examination of P.W.s is that the seized watches are not of foreign made. The custom officials has obtained the statement of the accused under Section 108 Customs Act and signature of the accused on seizure list and other connected papers by practicing fraud further the accused during his examination at the time of framing charge and that of examination under Section 313 Cr.P.C. has pleaded innocence.
(3.) On the basis of the submission made by both sides and after perusing the evidence before charge a charge under Section 135 (1) (b) (i) of the Customs Act was framed against the accused person to which he pleaded not guilty and claimed to be tried.;