Allowed

Union of India, v. Shri.a.S.a.Kabir

Madras HC6 Apr 2011CRL A/1233/2004

Case brief

AI extract

What is this about?

This Court allowed the prosecution's appeal against acquittal in a Customs Act case involving possession of gold and silver bars. The trial Court's acquittal was set aside as it relied on inadmissible statements and ignored Section 138-A's rebuttable presumption. The accused was convicted under Section 135(1)(b) and sentenced to a fine.

What did the court decide?

The judgment of acquittal was set aside; the respondent was convicted under Section 135(1)(b) of the Customs Act and sentenced to pay a fine of Rs.75,000/-. The acquittal under Section 135(1)(a) was c

Union of India, Vs Shri.a.S.a.Kabir — Cheque Dishonour | Madras HC (2011)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 06.04.2011

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CORAM:

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THE HONOURABLE MR.JUSTICE S.NAGAMUTHU

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Criminal Appeal No.1233 of 2004

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Union of India,
Rep. By its Assistant Commissioner
of Customs,
Prosecution Cell,
Customs House,
Chennai. .. Appellant/Complainant
Vs
A.S.A.Kabir .. Respondent/Accused
Prayer:- Criminal Appeal filed under Section 378 of Cr.P.C.,
against the order passed in E.O.C.c.No.48 of 1995 dated 08.06.2004
on the file of Additional Chief Metropolitan Magistrate, E.O.I,
Egmore, Chennai.
For Appellant : Mr.N.P.Kumar,
Special Public Prosecutor
For Respondent : Mr.B.Kumar,
Senior Counsel for
Mr.A.Abdul Huck
JUDGEMENT

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This appeal is against acquittal. The challenge is to the acquittal of the respondent in E.O.C.C No.48/95 dated 08.06.2004 on the file of the learned Additional Chief Metropolitan Magistrate, EO.I, Egmore, Chennai – 8. It was a case instituted on a private complaint filed by the appellant alleging that the respondent had committed offences punishable under Section 135(1) (a)and 135(1)(b) of the Customs Act.

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2.The brief facts of the case are as follows:-

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P.W.1 was the Superintendent in the Customs Department at Chennai Port Trust during the year 1993. On 19.03.1993, the then Assistant Commissioner of Customs issued a warrant to P.W.1 to search the premises in Door No.2, Vengupillai Street, Egmore, Chennai, where, the accused/the respondent was residing. Exhibit P.1 is the Search Warrant issued by the Assistant Commissioner. P.W.1 thereafter arranged to go for house search along with P.W.2Jayakumar and few other Officers. Accordingly, P.W.1 proceeded to https://hcservices.ecourts.gov.in/hcservices/ the house of the accused on 19.03.1993 at 12.00 noon. After

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informing P.W.1 about his identity and his intention to search as per Exhibit P.1 warrant to the respondent/accused, he along with P.W.2 and other officials, entered into the house and made a search. P.W.4-Mr.Loganathan was then residing in the first floor of the said building. P.W.1 requested P.W.4 and another person by name Mr.Jain Babulal to be witnesses for the house search. Accordingly, they agreed. Then P.W.1 obtained an acknowledgment from the accused to evidence the search. Thereafter, P.W.1 searched the entire house. In the ground floor at the second room, they found a paper baggage. In the presence of the above two witnesses, P.W.1 and the other Officials opened the same and they found 42 gold bars each weighing 10 thollas. P.W.1 enquired the accused about the same. He told that he had no receipts for payment of customs duty for having imported the said gold bars. He also did not produce any other documents pertaining to the gold bars. Therefore, P.W.1 seized the same under a Mahazar. Then he continued the search. In the same room, in a different corner, he found a gunny bag. When he opened the same in the presence of witnesses, he found 6 silver bars. The same were weighing 40.421 kgs, 38.586 kgs, 38.275 kgs 39.258 kgs and 39.939 kgs respectively. He seized the same also under a Mahazar.

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3.During trial, P.W.1 has identified 42 gold bars seized from the house of the accused as M.O.1 series. The paper baggage has been marked as M.O.2. The silver bars seized were marked as M.Os.3 to 8. Exhibit P.2 is the Mahazar for the recovery of the same. P.W.4 and Mr.Jain Babulal signed the said Mahazars as witnesses. A copy of the said Mahazar was handed over to the accused. P.W.1 suspected that these articles had been imported into India without paying proper customs duty. Then P.W.1 seized two Inland letters from the house of accused which were marked as Exhibit P.4 series. Then he also recovered a copy of the lease deed (Exhibit P.5) dated 18.05.1992 showing that the accused was residing as a lessee in the said house. When the accused was questioned about the possession of silver bars he produced three receipts showing payment of customs duty.

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4.The first baggage receipt is No.15438 dated 05.03.1993 and the same is in the name of one Mr.K.Mohan. According to the said receipt, for 98 kilos of silver, a sum of Rs.49,000/- was paid towards customs duty under (Exhibit P.6) by Mr.Mohan. The second baggage receipt No.15436 dated 05.03.1993 stands in the name of one Mr.G.T.Kumarasamy. Under this bill, for 96 kgs of silver a sum of Rs.48,000/- had been paid as customs duty (Exhibit P.7). The third baggage under receipt No.16015 dated 05.03.1993, is in the name of one Mr.Mathiyalagan. For 100 kgs of silver a sum of Rs.50,000/- had been paid towards customs duty (Exhibit P.8). P.W.1 recovered all these receipts under appropriate Mahazar.

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5.Then P.W.1 returned to the Customs Office and handed over all the contrabands to his higher officials. On the same day in the evening as directed by the customs officials at about 4.30 p.m., the accused appeared before P.W.1. He gave a voluntary https://hcservices.ecourts.gov.in/hcservices/ statement. P.W.1 reduced the same into writing. Exhibit P.10

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containing 6 pages is the said statement. In the said statement, he gave explanation that the gold boars numbering 42 which were recovered from his house belonged to one Mr.Samsudin Bin-Mohamed. He further told that Mr.Samsudin Bin-Mohamed had brought the same from Singapore on 06.02.1993 by air. He further told that Mr.Samsudin Bin-Mohamed had paid appropriate customs duty for the same. He further told that Mr.Samsudin Bin-Mohamed handed over the gold bars to him for keeping the same under safe custody for the purpose of selling the same in India. He further told that Mr.Samsudin Bin-Mohamed had left India subsequently. In respect of the silver bars he told that Mr.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan referred to in the above receipts (Exhibits P.6 to P.8) had handed over the same to him along with the bills.

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6.On 06.04.1993, Mr.Samsudin Bin-Mohamed appeared before P.W.1 and gave a statement. The said statement has been marked as Exhibit P.11. In the said statement, Mr.Samsudin Bin-Mohamed told that he was the owner of the 42 gold bars recovered from the house of the accused. He also told that he brought the same on 06.02.1993 from Singapore by air and also paid appropriate customs duty at the Airport. A receipt under Exhibit P.12 was also produced for payment of the customs duty.

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7.According to P.W.1, when he compared the 42 gold bars seized from the house of the accused and the description made in the said receipt-Exhibit P.12, he found that the said receipt had no relevance to the gold bars seized from the house of the accused. As a matter of fact, according to P.W.1, weight of the silver bars mentioned in the receipts did not tally with the silver bars seized. Then he handed over the further investigation to his higher officials.

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8.P.W.2 is an Officer who accompanied P.W.1 during the house search of the accused, he has also spoken to the said facts in a vivid fashion. P.W.3 is yet another officer who accompanied P.W.1 during the house search at the house of the accused and he has also vividly spoken about the house search and the recoveries. P.W.4 is the owner of the house where the accused was residing. During the relevant time, he was residing in the first floor of the building. He has deposed to the fact that he was a witness to the house search made by the Customs Authorities and the recoveries made from the house of the accused. P.W.5 is yet another officer who accompanied P.W.1 during house search. He has also deposed to the above facts in details. P.W.6 was a Vigilance Officer in Customs Department at Chennai. He has spoken to about the examination of one Mr.Gajapathy. The statement of Mr.Gajapathy (not examined) is Exhibit P.26. P.W.7 is an officer of the customs Department during the relevant time. He has stated about the issuance of show cause notice to the accused under Exhibit P.27. He has also spoken to about the departmental order dated 17.02.1994. P.W.8 was an Officer working at the office of the Commissioner of Customs in Chennai. He has spoken to the fact that the entire file relating to this case was placed before the https://hcservices.ecourts.gov.in/hcservices/ Commissioner and the Commissioner, after having gone through the

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entire file and applying his mind, has issued a sanction order for prosecution. The said sanction order is Exhibit P.13. Based on the said sanction order, a private complaint was filed before the trial Court on which, cognizance was taken and the accused was tried.

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9.Since the accused denied the acquisitions, in order to prove the allegations, on the side of the prosecution as many as 8 witnesses were examined as detailed above and 30 documents were exhibited. M.Os.1 to 9 are the material objects marked on the side of the prosecution. When the incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same. But he admitted that there was a house search made by P.W.1 and other officials from Customs Department and also the recovery of material objects. His explanation was that the gold bars were handed over to him by Mr.Samsudin Bin-Mohamed and they were already subjected to customs duty. In respect of the silver bars also his explanation was that they were all handed over by three persons namely Mr.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan and they were all already subjected to customs duty. Thus, according to him, he had not committed any offence.

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10.Having considered the above materials, the trial Court found that the complainant had failed to prove the case beyond reasonable doubts and accordingly, acquitted the respondent/accused. Challenging the same, the complainant is before this Court with this appeal.

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11.I have heard Mr.N.P.Kumar, learned Special Public Prosecutor appearing for the appellant and Mr.B.Kumar, learned Senior Counsel appearing for the respondent/accused and also perused the records carefully.

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12.Taking me through the judgment of the trial Court, the learned Special Public Prosecutor appearing for the appellant would submit that the trial Court has acquitted the respondent mainly on three grounds.

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(i) The first and foremost ground is that it is doubtful that the gold bars seized from the accused and the gold bars produced before the Court as material objects are one and the same. To put it otherwise, according to the trial Court, there is some discrepancy between the material objects produced before the Court and the material objects seized from the house of the accused.

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(ii)The next ground of acquittal is that the statement made by Mr.Samsudin Bin-Mohamed marked as Exhibit P.11 coupled with the statement of the accused to the Customs Authorities under Exhibit P.10 clearly exonerates the accused from the charges.

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(iii).The third ground is that Exhibit P.12 receipt has proved that all the 42 gold bars were brought only by Mr.Samsudin https://hcservices.ecourts.gov.in/hcservices/ Bin-Mohamed by air from Singapore into India and the appropriate

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customs duty was paid. Therefore, according to the trial Court, the prosecution has failed to prove the case.

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13.The learned Special Public Prosecutor would submit that all the above grounds stated by the trial Court are perverse. He would submit that absolutely there is no contradiction between the description of the gold bars in the seizure mahazar and the subsequent documents namely show cause notice, sanction order etc. During trial, there was no denial at all that M.O.1 series was seized from the house of the accused. He would further submit that the statement made by Mr.Samsudin Bin-Mohamed to the Customs Authority under Section 108 of the Customs Act, is not at all admissible in evidence because he was not examined as a witness before the trial Court. He would further submit that similarly, the statement of the accused made under Exhibit P.11 is also not admissible in evidence because, it is not a confession. He would further submit that the said statement is only a former statement of a living person and therefore, the same cannot be made use of by the accused for any purpose.

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14.The learned Special Public Prosecutor would further submit that Exhibit P.12 baggage receipt standing in the name of Mr.Samsudin Bin-Mohamed has got nothing to do with the gold bars seized from the house of the accused. He would further submit that the description of the gold bars found in Exhibit P.12 receipt do not tally with M.O.1 series. Therefore, the finding of the trial Court in this regard is not correct. To put it otherwise, it is the argument of the learned Special Public Prosecutor that the trial Court has overlooked the acceptable evidence tendered by the prosecution by satisfying all the legal requirements and thus, the judgment of the trial Court is perverse and the same requires interference at the hands of this Court.

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15.The learned Senior Counsel appearing for the respondent/accused would however refute all these allegations. According to him, the gold bars seized from the house of the accused have not been produced before the Court. M.O.1 series was not really the gold bars seized from the house of the accused. P.W.1 and the authorities have changed the gold bars so as to show that there has been some discrepancy between Exhibit P.12 and the gold bars produced in the Court. He would further submit that the statement made by the accused to the customs authority is very much admissible in evidence as an "admission" and not as a "confession". The learned Senior Counsel would further submit that under Exhibit P.12, the accused has discharged his burden of proving that M.O.1 series gold bars were lawfully kept by him since appropriate customs duty had already been paid by Mr.Samsudin Bin-Mohamed to the customs authorities. The learned Senior Counsel would nextly contend that the charges framed by the trial Court are defective and the same has caused failure of justice to the accused. He would further submit that the sanction order is also defective inasmuch as it reflects total non application of mind on the part of the Sanctioning Authority. He https://hcservices.ecourts.gov.in/hcservices/ would also make a comment about the non examination of the

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Commissioner who had given sanction order. The learned Senior Counsel would further submit that the offence under Sections 135 (1)(a) and 135 (1)(b) of the Customs Act, will not go together in the given facts alleged by the prosecution. In so far as the charge under Section 135(1)(a) of the Act, is concerned, unless, it is alleged in the charge itself that the gold bars were imported by the accused without paying customs duty by evading the same. Thus, the charge itself is erroneous and therefore, the conviction of the accused for offence under Section 135(1)(a) of the Act, is not sustainable, he contended.

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16.In so far as the charge under Section 135(1)(b) of the Act is concerned, it is the contention of the learned Senior Counsel that unless there is an allegation that the accused had knowledge that the material objects in question were not subjected to customs duty, the said offence also would not be attracted. Thus, according to the learned Senior Counsel, neither can there be any conviction under Section 135(1)(a) of the Act nor under Section 135(1)(b) of the Act.

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17.I have considered the rival submissions.

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18.There is no denial of the fact that P.W.1 and other officials made a house search at the house of the accused on the crucial date. There is also no denial of the fact that 42 gold bars and 8 silver bars were seized from the house of the accused. It is also not denied by the accused that the said 42 gold bars and 8 silver bars were possessed by him.

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19.Now the question is whether the gold bars seized from the house of the accused were produced before the Court or there was a change in the material objects that were produced before the Court as it is contended by the learned Senior Counsel. For this, we have to look into the evidence of P.W.1. P.W.1 even in his chief examination has clearly stated that M.O.1.series namely 42 gold bars were seized from the house of the accused. He has identified M.O.1 series, as the gold bars which were seized from the house of the accused. In cross examination, there is no dispute at all raised by the accused disputing the said fact spoken to by P.W.1. When a specific query was made to the learned Senior Counsel as to why this fact was not disputed by the defence, the learned Senior Counsel has no answer to submit to the Court. Thus, the fact remains that there was no denial of the fact spoken to by P.W.1 that M.O.1 series namely 42 gold bars were the ones seized from the house of the accused.

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20.The learned Senior Counsel would however take me through the recovery mahazar where there is no detailed description given about the gold bars which were seized from the house of the accused. He would take me through the show cause notice to show that the customs authorities improved the case by making the description of the gold bars in the said statement so as to defeat the defence of the accused that Exhibit P.12 covers these gold https://hcservices.ecourts.gov.in/hcservices/ bars.

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21.In my considered opinion, this argument is not available for the defence to make for the simple reason that the accused had not denied by way of cross examination when P.W.1 tacitly and vividly had spoken to the fact that M.O.1 series namely 42 gold bars were the ones seized from the house of the accused. If only the above fact spoken to by the said witness is disputed, the said disputed question of fact should be adjudicated upon for which the Court may have to look into the other materials like Mahazars, show cause notice, sanction order etc.

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22.But in this case, since the fact that M.O.1 series were seized from the house of the accused by P.W.1 and other officials of Customs was not at all disputed, there is no occasion for this Court now to adjudicate upon all these aspects.

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23.Then we have to look into the statement made by the accused under Section 313 Cr.P.C. For the first question relating to 42 gold bars and the seizure of the same from the house of the accused, the accused had no denial. Question No.2 under Section 313 Cr.P.C., is in respect of the evidence of P.W.1 wherein he had stated that M.O.1 series 42 gold bars were seized from the house of the accused. When this evidence was brought his notice, the accused admitted the same. However, he has stated that he had receipts for the same. The third question is under Section 313 Cr.P.C., is more specific about M.O.1 series as well as the silver bars. In the same question, in respect of M.O.2, it has also been put to the accused about the silver bars. For the said question, the accused admitted the facts. He did not deny. Thus it is crystal clear that when P.W.1 identified M.Os.1 and 2, the accused did not deny the same and when the accused was questioned under section 313 Cr.P.C., also he did not deny the same. Thus, it is an admitted fact by the accused that M.O.1.series namely 42 gold bars and M.O.2 series the silver bars were the ones seized from his house.

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24.The learned Special Public Prosecutor would submit that in the confiscation proceedings, the accused claimed M.O.1 series as the one seized from his house. But confiscation order was passed against him. Thereafter, the matter went upto the Hon’ble Supreme Court. But the accused lost there also. Making such a statement, the learned Special Public Prosecutor would submit that it is too late in the day for the accused now to say that M.O.1 series was not the gold bars really seized P.W.1 and other officers of Customs from his house. In my considered opinion, this statement of the learned Special Public Prosecutor cannot be considered because it is extraneous to the facts of the case. It is the fundamental principle of law that any material which is not available on record and brought to the notice of the accused under Section 313 Cr.P.C., cannot be used against him at all. As of now, I do not have any record of the confiscation proceedings and the result thereon. However, the learned Senior Counsel for the respondent does not dispute the correctness of the said statement https://hcservices.ecourts.gov.in/hcservices/ of the learned Public Prosecutor.

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25.For the foregoing discussions, I have no hesitation to hold that the conclusion of the trial Court was perverse inasmuch as the trial Court was wrong in holding that the recovered gold bars were not produced before the Court during trial. If once it is so concluded that the accused was found in possession of gold bars (M.O.1 series) and silver bars (M.O.2 series), then under Section 138(A) of the Customs Act, there bas to be a legal presumption of culpable mental state raised against the accused. The said provision reads as follows:-

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“138-A Presumption of culpable mental state.-(1)In any prosecution for an offence under this Act which requires a culpable mental state on the part of the accused, the Court shall presume the existence of such mental state but it shall be a defence for the accused to prove the fact that eh had no such mental state with respect to the act charged as an offence in that prosecution.

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Explanation-In this section, “culpable mental state” includes intention, motive, knowledge of a fact and belief in, or reason to believe, a fact.

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(2)For the purposes of this section, a fact is said to be proved only when the Court believes it to exist beyond reasonable doubt and not merely when its existence is established by a preponderance of probability.”

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26.Therefore, in the case on hand, applying the said legal provision, it has to be presumed that the accused had knowledge of the fact that the gold and silver bars seized from his house were not subjected to customs duty. Of course the said presumption is rebuttable and it will not amount to conclusive proof. It is also the law that a rebuttable presumption can be rebutted either by letting positive evidence or by brining on record the materials during cross examination or by producing the same as documentary evidence. Therefore, now we have to see whether the accused has discharged his burden of rebutting the said presumption.

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27.The learned Senior Counsel would submit that Exhibit P.12 receipt clearly discharges the burden of the accused to rebut the said presumption. In my considered opinion, it is not so. A close perusal of Exhibit P.12 would go to show that it is nothing but a challan issued by the State Bank of India, Chennai for payment of a sum of Rs.1,07,800/- as customs duty for 42 numbers of gold bars totally weighing 4900 gms. The description of gold bars is mentioned as “SUCSSE”. The learned Senior Counsel would submit that the expression “SUCSSE” refers to the country from where it is imported. The said receipt was issued on 06.02.1993. The learned Senior Counsel would submit that under this receipt https://hcservices.ecourts.gov.in/hcservices/ Mr.Samsudin Bin-Mohamed had imported the above gold bars from

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“SUCSSE” by air, paid the customs duty, brought the same and handed over the same to the accused. The question now is whether this receipt has got any relevance to M.O.1 series. It is the contention of the appellant that the said receipt has got nothing to do with M.O.1 series. In order to ascertain the same, we have to look into the description of the property made in the receipt.

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28.As I have already stated, except the description “SUCSSE”, there is nothing else is found. It cannot be argued before this Court that the term “SUCSSE” will refer only to 42 gold bars and the same will not be referable to any other gold bars. It is not in dispute that the name “SUCSSE” is a common name which will be indicated in all gold bars which are imported from “SUCSSE”. Therefore, from this description, it cannot be safely concluded that M.O.1 series are referable to this receipt.

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29.Nextly, there is one person who can speak about the fact as to whether the said receipt relates to M.O.1 series or not. He is Mr.Samsudin Bin-Mohamed. It is not known as to why Mr.Samsudin Bin-Mohamed was not examined before the trial Court. In this regard, I may refer to Section 114(g) of the Evidence Act, which states that the Court may presume that evidence which could be and is not produced would, if produced, be unfavorable to the person who holds it. Ofcourse this presumption is also rebuttable but the same is also not rebutted by the accused in this case. It is not explained to the Court as to why Mr.Samsudin Bin-Mohamed was not examined by the accused. Had he been examined, he would have been in the better position to inform the Court as to whether he really handed over the gold bars covered under Exhibit P.12 to the accused and whether M.O.1 series available in the Court are the ones which he had imported. In the absence of examination of the said witness by the accused, in my considered opinion, the presumption under Section 114(g) of the Evidence Act, is to be necessarily drawn adversely against him.

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30.A perusal of the judgment of the trial Court would go to show that the trial Court has relied on the statement made by Mr.Samsudin Bin-Mohamed under Exhibit P.11. When a specific query was made to the learned Senior Counsel as to whether such a statement is admissible in evidence in the absence of examination of the maker of the statement, the learned Senior Counsel fairly submitted that the same is not admissible in evidence.

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31.The learned Special Public Prosecutor would also submit that the said statement is not admissible in evidence. For this purpose, I may refer to Section 138-B of the Customs Act, which reads as follows:-

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“138-B. Relevancy of statements under certain circumstances.-(1) A statement made and signed by a person before any Gazetted Officer of customs during the course of any inquiry or proceeding under this Act shall be https://hcservices.ecourts.gov.in/hcservices/ relevant, for the purpose of proving, in any

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prosecution for an offence under this Act, the truth of the facts which it contains,-

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(a)when the person who made the statement is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable; or

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(b)when the person who made the statement is examined as a witness in the case before the Court and the Court is of opinion that, having regard to the circumstances of the case, the statement should be admitted in evidence in the interests of justice.

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(2)The provisions of sub-section(1) shall, so far as may be, apply in relation to any proceeding under this Act, other than a proceeding before a Court, as they apply in relation to a proceeding before a Court.”

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32.A reading of the above provision would go to show that only in the circumstances enumerated in the said provision, the statement recorded under Section 108 of the Customs Act, by the Customs Officer can be admitted in evidence in a criminal prosecution. In this case, it is not the case that Mr.Samsudin Bin-Mohamed is not available or that the other conditions enumerated in Section 138-B of the Customs Act, are satisfied. Therefore, the statement namely Exhibit P.11 made under Section 108 of the Customs Act, by Mr.Samsudin Bin-Mohamed is nothing but a former statement which can be used either for contradicting him or to corroborate his evidence. The said statement can never be treated as substantive evidence to prove the contents of the same. Therefore, as rightly pointed out by the learned Senior Counsel, Exhibit P.11 is not at all admissible in evidence.

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33.But the trial Court has relied on the said statement and recorded the acquittal of the accused on this basis. To this extent, I have to again hold that the judgment of the trial Court is perverse. The learned Senior Counsel would submit that Exhibit P.10 the statement made by the accused under Section 108 of the Customs Act, to P.W.1 can be looked into to see that he has discharged his burden.

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34.But the learned Special Public Prosecutor would submit that the said statement is not admissible in evidence. For this, the learned Senior Counsel initially submitted that since P.W.1 is not a police Officer, the said statement is admissible in evidence since the bar contained in Section 25 of the Evidence Act, is not applicable. It is needless to point out that a confession made by the accused before the Customs Authorities under Section 108 of the Customs Act, can be made use of against the maker of the statement because Section 25 of the Evidence Act, will not be a https://hcservices.ecourts.gov.in/hcservices/ bar since the Customs Officer is not a police officer. The learned

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Senior Counsel after going through Exhibit P.10 would submit that it is not the confession. Realising the difficulty in getting the said document admitted in evidence, the learned Senior Counsel nextly submitted that the said statement can be used as "admission". For this, this Court brought to the notice of the learned Senior Counsel, Section 21 of the Evidence Act, which reads as follows:-

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"21. Proof of admissions against persons making them, and by or on their behalf. Admission are relevant and may be proved as against the person who makes them or his representative in interest; but they can not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.

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(1) An admission may be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead, it would be relevant as between third person under section 32.

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(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at our about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.

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(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission."

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35.As per the said provision, an admission made by an accused can be used only against him and the same cannot be used in his favour except in certain conditions enumerated in Section 21 of the Evidence Act. The learned Senior Counsel is not in a position to explain to the Court as to how the said statement of the accused is admissible in evidence. At this juncture, I may refer to Section 31 of the Evidence Act, which states that admissions are not conclusive proof of the matters admitted but they may operate as estoppels under the provisions. From the above provision, it is made clear that the admission can be made use of only against the maker of the statement and the same cannot be used in his favour. Thus, Exhibit P.10 is not admissible in evidence and therefore, the same cannot be admitted in evidence in favour of the accused to prove the contents of the same.

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36.In respect of the silver bars also, those three persons by name, Mr.K.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan have not been https://hcservices.ecourts.gov.in/hcservices/ examined. Only their statements have been marked in evidence and

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they have been illegally admitted in evidence and relied on by the trial Court. If the same is eschewed, absolutely there is no evidence to show that the silver bars were subjected to customs duty and the same was handed over by those three persons to the accused.

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37.At this juncture, I may also refer to Section 106 of the Evidence Act, which states that when any fact is especially within the knowledge of any person, the burden of proving that fact is upon him. In this case, if it is true that the gold bars were handed over by Mr.Samsudin Bin-Mohamed and the silver bars were handed over by Mr.K.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan to the respondent/accused, it is his burden to prove the said fact because, it is within his exclusive knowledge and within the exclusive knowledge of the persons who have stated to have handed over the articles to him. The said burden could have been discharged by the accused by examining himself as a witness before the Court. But, in view of Section 315 Cr.P.C., no adverse inference could be drawn against the accused for failure to examine himself as defence evidence. At the same time, the said burden could have been discharged by examining the other persons namely Mr.Samsudin Bin-Mohamed, Mr.K.Mohan, Mr.Kumarasamy and Mr.Mathiyalagan. When they have not been examined and there is no explanation offered before this Court for the same, I have to hold that the burden has not been discharged at all by the accused to prove that the gold bars and the silver bars were handed over to him by those persons after paying necessary customs duty.

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38.The trial Court has acquitted the accused on the above grounds which in my considered opinion is only perverse because the trial Court has overlooked the acceptable evidences and has relied on the evidences which are inadmissible in evidence.

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39.Now coming to the next contention of the learned Senior Counsel that the sanction order is defective in this case, the learned Special Public Prosecutor would submit that the sanction order is not at all defective. In this regard, the learned Senior Counsel has taken me through the sanction order to say that there is no detailed documentation showing the application of mind of the Sanctioning Authority. In this regard, the learned Senior Counsel has relied on a judgment of the Hon’ble Supreme Court in Inder v State of Maharashtra (1979 (4) SCC 484) wherein, the Hon’ble Supreme Court has held as follows:-

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“In this appeal by special leave the appellant has been convicted under Section 135 ( b ) of Customs Act, 1962 and sentenced to two years’ rigorous imprisonment and a fine of Rs 2000. He has also been convicted under Section https://hcservices.ecourts.gov.in/hcservices/ 85( ii ) of the Gold Control Act and sentenced

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to two years’ rigorous imprisonment and a fine of Rs 2000. The sentences of imprisonment were directed to run concurrently. It appears that the appellant has already spent about a month in jail and after a lapse of ten years it does not appear to be conducive to the ends of justice to send the appellant back to jail. In these circumstances, therefore, while upholding the conviction of the appellant, we would reduce the sentence of imprisonment to the period already served. In lieu of the sentence remitted we impose a fine of Rs 15,000 under each count, total being Rs 30,000, in default six months’ rigorous imprisonment on each count. The appellant is allowed to pay Rs 10,000 within a month from today and the balance of the amount to be paid within six months from today. With this modification, the appeal is dismissed.”

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40.When a specific query was made to the learned Senior Counsel as to whether for the defect in the sanction order, the entire trial will get vitiated, the learned Senior Counsel has relied on a judgment of the Hon’ble Supreme Court in P.Sankaran v. Assistant Collector of Central Excise (CDJ 2008 SC 405) wherein, the Hon’ble Supreme Court has acquitted an accused where the question of validity of the sanction was also raised. I have carefully gone through the said judgment of the Hon’ble Supreme Court. The Hon’ble Supreme Court has not declared the law that the trial will get vitiated for want of valid sanction. In paragraph No.13 of the judgment, it has been held as follows:-

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“13.Furthermore, the High Court in its impugned judgment does not deal with the question of grant of a valid order of sanction at all. As the learned Sessions Judge recorded a judgment of acquittal, the High Court while reversing the same was required to meet the reasoning’s given by the learned Sessions Judge. The same having not been done, the impugned judgment cannot be sustained which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of this case, there shall be no order as to costs.”

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41.Therefore, in my considered opinion, simply because there is some delay in the sanction order, which is formal in nature, it cannot be held that the entire prosecution is vitiated.

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https://hcservices.ecourts.gov.in/hcservices/

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42.Assuming for a moment that such defect in the sanction order will disturb the entire prosecution, let us now look into the sanction order. In this case, the sanction order runs to several pages which contains a detailed documentation of all the events including the house search, seizure, enquiry, statements recorded, Mahazar etc. A perusal of the sanction order would go to show that the said sanction order has been issued only on due application of mind. Further, there is no law that the sanctioning authority should be examined. It is only in a case where a sanction order is cryptic in nature, in order to explain to the Court as to what are the materials which made him to get satisfied and the grounds of satisfaction, the sanctioning authority needs to be examined. But in a case where the sanction order itself is so narrative, containing all the details reflecting the application of mind, there is no need to examine the sanctioning authority. Therefore, in the case on hand, though the sanctioning authority has not been examined, the same has not affect the prosecution in any manner. Thus, I hold that the sanction order does not suffer from any infirmity and the same is valid.

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43.Now let me turn to the last argument of the learned Senior Counsel in respect of the charges. The learned Senior Counsel would submit that the charges framed are so defective and there can be no conviction based on the said charges. In this regard, I may refer to Sections 135(1)(a) and 135(1)(b) of the Customs Act:-

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"135.Evasion of duty or prohibitions.- (1) Without prejudice to any action that may be taken under this Act, if any person-

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(a)is in relation to any goods in any way knowingly concerned in misdeclaration of value or in any fradulent evasion or attempt at evasion of any duty chargeable thereon or of any prohibition for the time being imposed under this Act or any other law for the time being in force with respect to such goods; or

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(b)acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or section 113, as the case may be; or”

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44.The learned Senior Counsel would submit that to punish a https://hcservices.ecourts.gov.in/hcservices/ person under Section 135(1)(a) of the Customs Act, the charge

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should read that the accused had knowledge that there was any misdeclaration of value or in any fraudulent evasion of duty chargeable thereon. In this case, according to the learned Senior Counsel, in the charge, there is nothing said about the same. Therefore, according to him, there can be no conviction under this charge.

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45.The learned Special Public Prosecutor would fairly concede that there can be no conviction simultaneously under Section 135 (1)(a) and 135(1)(b) of the Act. He would further submit that the facts placed before the Court by way of evidence would go to show that the accused had committed offence under Section 135(1)(b) of the Customs Act alone. Therefore, I do not propose to deal with Section 135(1)(a) of the Customs Act. As far as Section 135(1)(b) of the Customs Act is concerned, it states that if any person acquires possession of or is in any way concerned in carrying, removing, depositing, harbouring, keeping, concealing, selling or purchasing or in any other manner dealing with any goods which he knows or has reason to believe are liable to confiscation under Section 111 or Section 113 he may be punished.

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46.There is no doubt in this case that the properties are liable for confiscation under Section 111 of the Customs Act, and as a matter of fact, this Court is informed that the properties were duly confiscated. There is no doubt that the accused was keeping the said goods. In respect of the culpable state of mind, the presumption under Section 138(1)(a) of the Customs Act, is to be raised and as I have already stated, the said presumption has not been rebutted by the accused. Therefore, in my considered opinion, the accused is liable to be punished under Section 135(1) (b) of the Act.

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47.At this juncture, I may also refer to Section 215 Cr.P.C., it states that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice. In this case, the statement of allegations found in the charge has given adequate particulars to the accused to defend himself effectively. The accused has never raised his finger before the trial Court alleging that there were errors in the charge which misled him. For the first time such an argument is advanced before this Court in this appeal. Therefore, I have no hesitation to reject the said argument of the learned Senior Counsel.

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48.In view of the foregoing discussions, and conclusions arrived at, I have no hesitation to hold that the judgment of acquittal recorded by the trial Court is liable to be interfered https://hcservices.ecourts.gov.in/hcservices/ with. At this juncture, I have to state that I am conscious of the

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fact that while sitting on appeal and dealing with an appeal against acquittal, this Court has to make a cautious approach and in a mechanical manner, the judgment of acquittal should not be interfered with. As I have already referred to, if the evidence let in before the trial Court is closely and cautiously analysed it certainly goes to establish that the accused has committed offence under Section 135(1)(b) of the Customs Act, but the trial Court has overlooked the acceptable evidence and has accepted the inadmissible evidence to record acquittal. In view of all the above, I am inclined to set aside the judgment of the trial Court and accordingly, the accused is convicted under Section 135(1)(b) of the Customs Act.

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49.The appellant is present in Court and therefore, he is questioned in respect of the punishment to be imposed upon him. For the same, he made the following submissions. The accused said that he is a heart patient suffering from the said disease for about 18 years. He has stated that he is an old man and therefore, leniency may be shown in the matter of punishment.

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50.On the question of sentence, the learned Senior Counsel would submit that though as per Section 135(1)(d)(i) of the Customs Act, there is a minimum punishment of one year prescribed, for adequate reasons there can be lesser punishment. The learned Senior Counsel has relied on a judgment of the Hon’ble Supreme Court in Inder v. State of Maharashtra (cited supra), wherein the Hon’ble Supreme Court on having taken into consideration the time lapse of 10 years in the trial of the case, imposed only a fine of Rs.30,000/- in lieu of sentence.

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51.The learned Senior Counsel would nextly rely on the judgment of the Hon’ble Supreme Court in Rohit Kumar Mehra v. Asstt. Collector, Customs, Ministry of Revenue, Amritsar (1994 SCC (cri) 154) wherein, in paragraph No.3, the Hon’ble Supreme Court has held as follows:-

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“3. Having regard to the fact that more than a decade has passed since the date of the commission of the crime and he has not come for adverse notice since then and appears to have settled down in life and also having regard to the fact that the Gold Control Act has since been repealed, we think that a lenient view may not be out of place in the facts and circumstances of this case. We, therefore, order the substantive sentence to be that already undergone and increase the fine to Rs 25,000 on each count. We direct that failing payment of fine he will suffer imprisonment for one year and three months on

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https://hcservices.ecourts.gov.in/hcservices/

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each count. The sentence will stand so altered. The appeal will stand disposed of accordingly.

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52.The learned Senior Counsel would rely on yet another judgment in K.I.Pavunny v. Assistant Collector (HQ), Central Excise Collectorate, Cochin (1997 (3) SCC 721) wherein in paragraph Nos. 33 and 34, it has been held as follows:-

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“33. Section 135 provides that “ without prejudice to any action that may be taken under the Act ”, (emphasis supplied) if any person is, in relation to any goods in any way, knowingly concerned in any prohibition imposed under the Act for the time being in force with respect to such goods or acquires possession of any goods which he knows or has reason to believe are liable to confiscation under Section 111, then he shall be liable to conviction under sub-section (1) thereof and shall be liable to punishment under subsection (2) thereof. Similarly, under the Gold (Control) Act, which was in operation at the relevant time, whoever in contravention of the provisions of that Act or order made thereunder, among other things, owns or has in his possession, custody or control any primary gold, is liable, without prejudice to any other action that may be taken under that Act, for punishment of imprisonment prescribed for the purpose. Under Section 86, whoever fails to make a declaration enjoined under subsection 12 of Section 16 without any reasonable cause, is liable to punishment of imprisonment prescribed for the purpose. The offences are proved from the evidence.

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Having reached the finding that the appellant has committed the offences under Section 135(1)( i ) of the Act and Sections 85 (1)( a ) and 86 of the Gold (Control) Act, 1968 we think that instead of being committed to jail, the appellant should be sentenced to pay fine of Rs 10,000 and Rs 5000 respectively for the two aforementioned offences, within 4 months from today. In default, he shall undergo imprisonment for a period of 2 months and 1 month respectively which are directed to run consecutively.”

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53.Relying on the above judgments, the learned Senior Counsel would submit that in the instant case, the prosecution was launched in the year 1995 and for about 16 years, the accused has been dragged to Court. He would further submit that the properties involved in this case have already been confiscated and thus, in that respect also, the respondent has incurred huge loss.

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54.The learned Senior Counsel would submit that on considering the health ground that the respondent is a heart patient suffering from heart disease for about 18 years, his age and all the other attending circumstances, invoking the proviso to Section 135(1)(d)(i) of the Customs Act, the sentence may be imposed on the accused/respondent. He would further submit that the respondent was in jail for one week during investigation. The learned Senior Counsel would also submit that the respondent is prepared to pay a fine of Rs.50,000/-.

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55.The learned Special Public Prosecutor would however oppose the said plea of the learned Senior Counsel and he would submit that the offence is so heinous in nature and it is an attempt to destroy the very economy of the Nation and therefore, the persons like the accused who involve in these kinds of crime are to be dealt with iron hands.

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56.I have considered the above submissions.

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57.In similar situations, having regard to the fact that the accused had been dragged to Court for more than 10 years which itself is a punishment to him, the Hon’ble Supreme Court has taken a lenient view in the judgments cited supra wherein, the Hon’ble Supreme Court has imposed a fine alone. Though under Section 135 (1)(d)(i) of the Customs Act, a minimum punishment of imprisonment one year is prescribed, as per the proviso clause, for special and adequate reasons to be recorded lesser punishment can eb imposed. Having a holistic approach in this case, for the offence under Section 135(1)(b) of the Customs Act, I am inclined to impose a punishment of imprisonment for the period already undergone and with a fine of Rs.75,000/- in default to undergo rigorous imprisonment for six months, which in my considered opinion will meet the ends of justice.

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58.In the result, the appeal is partly allowed in the following terms:-

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(i)The judgment of the trial Court acquitting the respondent under Section 135(1)(b) of the Customs Act, is set aside and the https://hcservices.ecourts.gov.in/hcservices/ respondent is convicted for offence under Section 135(1)(b) of the

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Customs Act and he is sentenced to imprisonment for the period already undergone and to pay a fine of Rs.75,000/- (Rupees seventy five thousand only) and in default to undergo rigorous imprisonment for six months. To this extent, the appeal stands allowed.

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(ii)The acquittal of the respondent under Section 135(1)(a) of the Customs Act is confirmed and to that extent this appeal stands dismissed.

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(iii)Time for payment of fine amount is four weeks from the date of receipt of a copy of this judgment and the same shall be paid to the trial Court in E.O.C.C.No.48 of 1995. If the respondent fails to pay the same, then the trial Court shall take steps to recover the fine amount and may commit him to prison to undergo the default sentence.

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jbm
Sd/-
Asst. Registrar
//True Copy//
Sub Asst. Registrar
To
1.The Additional Chief Metropolitan Magistrate,
E.O.I, Egmore, Chennai.
2.Do through The Chief Metropolitan Magistrate,
Egmore, Chennai
3.The Assistant Commissioner of Customs,
Prosecution cell, Custom House, Chennai.
4.The Spl Public Prosecutor,
High Court, Madras.
+ 1 cc to M/s. M.A. Abdul Hack, Advocate SR No. 24515
RSI(CO)
SR/2.5.2011

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Crl.A.No.1233 of 2004

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https://hcservices.ecourts.gov.in/hcservices/

Union of India, v. Shri.a.S.a.Kabir

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Union of India, v. Shri.a.S.a.Kabir

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