- (1.) This appeal is by the complainant and is directed against an order of acquittal made by the learned Presidency Magistrate in a case in which the present respondent was prosecuted and tried for alleged offences under Section 167(81) of the Sea Customs Act, 1878 , Section 23(1A) of the Foreign Exchange Regulation Act and Section 5 of the Imports and Exports (Control) Act. The complainant was an Assistant Collector of Customs and Superintendent Preventive Services at Calcutta.
(2.) The allegations for the prosecution were that the respondent Jiban Hiranand Hira had gone to a country outside India and came back by an aircraft that reached Dum Dum airport on 2nd May, 1961. At that airport he declared two unaccompanied baggages that would be arriving at the port of Calcutta by Sea within two months. Accordingly a landing certificate was issued to him on that date. On 24th July, 1961 the two baggages arrived in Calcutta by S.S. Eastern Moon and those two baggages were kept in the look-fast of the Calcutta Port Commissioners. On 24th July, 1961 the accused respondent accompanied by his Clearing Agent came to the Customs House and presented the baggage declaration form in which he had declared that the consignment of the two baggages contained cheese, soup packets etc. He paid Rs. 84/- only as Customs duty on certain articles on the basis of that declaration and wanted to have the delivery of the goods on the same day. The appraiser had made an order for opening both the baggages for appraisement. The accused and his clearing agent, however, did not go to the jetty where the examination of the baggages was to take place but they promised to be present on the next day that is, 25th July, 1961, at 10 a.m. for the purpose of appraisement. On that date however that is 25th July, 1961 the accused did not turn up nor did his agent and the baggages were thereupon opened in presence of independent witnesses. On opening the said baggages 811 wrist watches, gold bullion in 37 slabs etc. were found in one of the cases. In the other case no contraband article was found.
(3.) In addition to these facts prosecution also alleged that a telegram had been received in Calcutta saying "sending 2 copy open credit No. 2". This telegram was addressed to "Perfume, Calcutta." Evidence was given that this telegram was delivered by P.W. 15 at flat No. 12 in premises No. 11 Middleton Road in taking initials of the person to whom it was delivered. Those initials however have not been proved by any evidence to be the initials of the present accused, nor P.W. 15 could identify the accused as the person to whom it was delivered. From these facts prosecution alleged that offences have been committed under Section 167(81) of the Sea Customs Act, Section 23(1A) of the Foreign Exchange Regulation Act and Section 5 of the Imports and Exports (Control) Act. The learned Presidency Magistrate in consideration of the evidence adduced before him held that neither the items of evidence nor their totality had established to his satisfaction that the accused "had any previous knowledge about the offending contents of the case, Ext. II or was directly concerned with the import of the same into India." Upon that finding the learned Presidency Magistrate acquitted the accused giving him benefit of doubt. The present appeal is against that order of acquittal. The learned Advocate for the appellant Mr. Ghose has argued that the learned Presidency Magistrate was in error in thinking that prosecution need have to establish by evidence that the accused was "directly concerned" with the import for any of the three offences alleged against the present respondent and therefore Mr. Ghose contended that the order of acquittal has been illegal and has brought about grave failure of public justice.;