1. This Criminal Appeal is from the judgement of acquittal of charge under Section 135(a)(ii) of the Customs Act, 1962, shortly, 'the Act'.
2. The appellant, Assistant Collector of Customs and Central Excise, Dhubri, lodged a complaint under Section 135 of the Act, alleging that on 16th January, 1973 at about 4 A.M. while the B.S.F. was on patrol duty they noticed one boat about to cross the border into Bangladesh near pillar No. 1042 and on being challenged by the B.S.F. patrol party the boatmen and the occupants of the boat fled away leaving the loaded boat on the border. The boat was found by the B.S.F. party to have been loaded with 150 packets of catechu and they brought the catechu-loaded boat to Dhubri, and on 18th January, 1973 the contraband was seized. They also recovered from the boat one challan dated 15th January, 1973 and a money receipt for the catechu in the name of one Umed Kumar Jain of Tinsobigha. Public notice inviting claims to the boat and the catechu having been issued, the respondent Umed Kumar Jain claimed the boat and the catechu and after departmental adjudication those were absolutely confiscated and a fine of Rs. 2,000 was imposed on the accused-respondent under Section 114 of the Customs Act, and the boat was also confiscated under Section 115 of the Act and sold in public auction for Rs. 262 and appropriated by the Central Government. After obtaining sanction from the Collector of Customs and Central Excise, Shillong the instant complaint was lodged. The seizure memo was annexed as annexure A. The adjudication order dated 26th September, 1973 was annexed as annexure B and the sanction order was annexed as annexure C to the complaint.
3. At the trial before the Magistrate, prosecution examined two witnesses while the defence examined three witnesses. On the basis of the evidence on record the learned Magistrate having acquitted the accused-respondent.
4. Mr. R.P. Kakati, the learned Central Government Standing Counsel for the appellant submits that P.W. 1 who was the Inspector of No. 82 B.S.F. having clearly deposed that the boat attempted to enter the territory of Bangladesh after crossing the Indian territory through the river Brahmaputra' near Pillar No. 1042 ond when asked to moor the boat, the boatmen, instead of doing that, increased its speed and began to row towards Bangladesh and as the patrol boat chased them, the occupants of the boat jumped into the river and lied away and the party took possession of the boat which was loaded with 150 packets of catechu and brought it to Dhubri at about 10 O'clock and seized the boat and the contraband. The learned trial Court, Mr. Kakati submits, ought not to have disbelieved the prosecution witnesses. Counsel submits that if the catechu was not taken for being smuggled out to Bangladesh there would be no reason for it being taken near the border. According to him the plea that the boat was proceeding to Tinsobigha to deliver cargo to the accused-respondent ought not to have been believed as the boat already crossed the Tinsobigha Char and reached near the Bangladesh border. Besides, Tinsobigha being only a char islet in the river there was no market for 150 packets of catechu and the natural conclusion was that it was meant for being smuggled out to Bangladesh.
5. Mr. P.C. Kataki, the learned counsel appearing for the accused-respondent, submits, inter alia, that the challan and the money receipt admittedly found along side the catechu in the boat clearly proved that the catechu was brought from Calcutta to Dhubri by the accused-respondent and it was halted at Gauripur wherefrom it was on transit by boat to Tinsobigha and the boat was illegally seized at the Dhubri Minghat at 10 A.M.; that no smuggler would leave the challan and the money receipt with the goods meant for being smuggled out; there was significant delay in seizing the catechu and in lodging the complaint inasmuch as the catechu was seized only on 18th January, 1973 at about 4 P.M.; that the prosecution failed to examine the material witnesses who could have unfolded the narrative of the story, namely, the majhis of the boat used by P.W. 1 who chased and captured the boat as alleged; and that the accused-respondent promptly claimed the catechu and the boat which would indicate that he was not a smuggler in respect thereof. The defence version, according to counsel, was proved beyond reasonable doubt by the D.Ws. 1, 2 & 3 ; and it cannot be said that the view taken by the trial Court is either perverse or unreasonable and this Court would not, therefore, interfere with the judgment of acquittal.
6. The learned trial Magistrate, on a comparison of the evidence of P.W. 1 and the defence witnesses, found that the latter had 'stronger force'. He also observed that P.W.I was after all a detecting officer and had the ambition to score credit by detecting important cases and on occasions he may not have scruple to manipulate things and that it had not been explained why the B.S.F. Inspector took two days to make over the goods to the customs authority. The defence contention, therefore, could not be brushed aside as a long time was taken for deliberations to concoct a story.
7. The seizure of the catechu, their adjudication and confiscation have not been denied by Mr. Kataki who states that the accused-respondent has appealed against the confiscations. Though, initially, Mr. Kataki submitted that there was no evidence to show that catechu was prohibited article, he, however, proceeded on the basis that it was a prohibited article. As defined in Section 2(33) of the Act, prohibited goods means any goods the import or export of which is subject to any prohibition under the Customs Act or any other law for the time being in force but does not include any such goods in respect of which the condition subject to which the goods are permitted to be imported or exported has been complied with. Mr. Kakati for the appellant emphatically stated that there was a notification prohibiting export of catechu from India to Bangladesh and as there was no such serious challenge before the trial Court the notification was not produced and that he is prepared to produce the same before this court if required. We, therefore, proceed on the basis that catechu was one of the prohibited goods.
8. Section 123 of the Act reads :
'Burden of proof in certain cases.-(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This section shall apply to gold, diamonds, manufactures of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the Official Gazette specify.'
Admittedly, catechu is not included and no such Central Government notification has been produced. The burden of proof, therefore, lies on prosecution and would not be on the person from whose possession the catechu was seized.
9. The next question is whether the prosecution succeeded in proving the attempt to smuggle the catechu out to Bangladesh as alleged P.W. 1 was disbelieved by the trial Magistrate on the grounds that there was suspicious delay in seizing the goods and vital witnesses were not examined. From evidence of P.W. 1 we find that he had been on patrolling duty on 16th January, 1973 and that the area from Pillars Nos. 1038 to 1043 was under his jurisdiction. He deposed that they got the boat near Pillar No. 1042. In cross-examination he admitted that really the Pillar No. 1042 did not exist there and it was in the river and was washed away by water. He further stated that there were small pillars at a distance of 10 gauges, but those were not visible and whereabouts of the border had to be ascertained by the land marks and river Brahmaputra had been flowing through Pillars Nos. 1041 and 1043 and Pillar No. 1042 was in the river. However, if the river Brahmaputra was so flowing between Pillars Nos. 1041 and 1043 and Pillar No. 1042 was in the midst of the river, then how a boat near Pillar No. 1042 could be said to be near the Bangladesh border He further said that the pillars were from north to south while the Bangladesh border fell on the western side. According to him Tinsobigha was situated in the eastern side from the place of occurrence at a distance of about 13 K..M. from Dhubri. He further said that they did not follow the men who fled away. If Pillar No. 1042 was inside the river Brahmaputra which was flowing in between Pillars Nos. 1041 and 1043 and the occupants of the boat jumped into the river Brahmaputra from the boat carrying catechu, it is difficult to see how they could not have been captured and how they could flee away from the midstream of the Brahmaputra. He also admittedly did not prepare any seizure list at the place of occurrence. He started from the place of occurrence at about 4 A.M. same day and reached Dhubri at 10/11 O'Clock and he reported about the seizure of the goods only on 17th January, 1973, but the Customs Officer had received the goods only on 18th January, 1973. P.W. 2 Binow Kr. Roy was not an eye witness to the occurrence and the majhis of the boat who saw the occurrence were not examined.
10. The accused-respondent in his statement under Section 313 (sic) categorically stated that the catechu was his and that both the papers, namely, the money receipt and the challan, Exhibits 1 and 2 respectively, had been signed by his younger brother and that he claimed the catechu as per Exhibits 4 & 5 and that under no circumstances he was involved in an attempt to export the catechu to Bangladesh. He categorically stated that the catechu and the papers were seized in the Dhubri Minghat and not on the border. Exhibit 4 is the accused-respondent's application for release of 150 packets of catechu detained by B.S.F. The accused-respondent claimed to be a businessman having his shop in Tinsobigha Char (south Salmara) and that he brought 150 packets of catechu from Calcutta by transport of Commercial Cargo which was first seized at Gauripur by Dhubri Customs and later on released by Deputy Collector of Customs and Central Excise, Shillong, vide order No. VIII (10) 187/CL/DPF/72/117 dated 5th January, 1973. It was stated therein that while the goods were being taken by boat to Tinsobigha through the Brahmaputra, which was the only route from Gauripur to Tinsobigha, those were stopped at 8 A.M. on 16th January, 1973 near Dhubri Minghat by B.S.F. personnel, who tore out some of the documents of the goods handed over to them for inspection, detained the boat with the boatmen till 10 A.M. on 18th January, 1973 on the same spot, and later the boat was taken to Dhubri Kacharighat at 3 P.M. and there the B.S.F. personnel drove off the boatmen by force and handed over the goods to Dhubri Customs on 18th January, 1973. Thereafter, the boat was sold in auction ignoring the accused-respondent's claim petition. The accused-respondent was asked to produce the witnesses before the Investigating Officer of B.S.F. and he wrote several letters and himself appeared before the Company Commandant, Dhubri with witnesses but the authority interrogated the petitioner only and did not examine any witnesses.
11. Exhibit 5 is a petition of the accused-respondent praying that he be accepted as the owner of the 150 packets of catechu and the same be released to him wherein also he gave the same explanation as in Exhibit 4 and mentioned the names of persons who say his boat being stopped by one Mahendra Majhi while it was passing by Dhubri river bank towards Tinsobigha. He categorically stated that the goods were neither taken nor intended to be taken for the purpose of exporting illegally.
12. D.W. I had a shop at Minbazarghat at Dhubri. He testified that the accused-respondent's boat which was proceeding downstream was called by Mahendra Majhi of the B.S.F. who asked what were the goods in the boat and at that time Basu, Bhabani Sarkar, and a few others were in his shop and that Rhabani Sarkar went through the papers. Among the papers were one challan, memo and a paper containing release order of the catechu which were seized previously by the Customs. Mahendra Majhi said that he would inform the officer and when the officer came D.W. 3 Shri Chand Sethia, father of the accused respondent also arrived at the spot and the boat was detained even after production of the papers. D.W. 2, Lashmi Prasad, corroborated D.W. 1 and said that both Umed and Shree Chand came on behalf of the owner. He had a tea stall at the river bank of Minghat and saw the occurrence while sitting in his shop. D.W. 3 Shri Chand Sethia corroborated D.Ws. 1 and 2. On that date he was at Gauriptir and at 8 A.M. oae Majhi of the boat came and informed him that a man Mahendra Majhi by name had detained the boat of Umed Jain (accused-respondent) at Minghat while it was proceeding towards Tinsobigha. At that time the accused-respondent, Umed Jain, was at Tinsobigha. The Majhi informed him that the boat had been detained even after production of the papers and requested him to proceed to Minghat and accordingly he arrived at Minghat at about 8.30. He met the Inspector of B.S.F. and other persons and requested them for release of the boat, but the Inspector did not agree and kept the boat under police guard and informed the witnesses that the boat would not be released; and on 18th January, 1973 he made over the boat and the goods to the customs department after threatening and driving them off. In cross-examination he said that on 17th January, 1973 he informed the customs office that the catechu belonged to his son, the accused-respondent.
13. On the basis of the above prosecution and defence evidence the trial Magistrate acquitted the accused-respondent. The trial Court believed the defence version and disbelieved P.W. 1. In our opinion it cannot be said that in doing so the trial Court took an unreasonable view on the basis of the evidence on record. To our mind the view is not unreasonable because of the following factors. Though P.W. 1 had with him a number of majhis who rowed his boat, none was examined. There is no explanation as to why the persons who jumped out of the boat in the midstream could not be pursued and arrested. There is no reasonable explanation as to why the goods were not handed over to the customs authorities till 18th January, 1973. The P.W.I himself in cross-examination stated that pillar No. 1042 was not in existence being in the midst of the river. The defence version was more credible in view of the following factors. The challan and the money receipt showed the legitimate origin of the accused-respondent's possession of the catechu and showed the legitimate nature of its transit up to Tinsobigha. There was no positive evidence except the mere statement of P.W. 1 that the boat really crossed Tinsobigha and proceeded towards Bangladesh border. It would be unnatural for any person trying to smuggle goods out of the country to have left the challan and the money receipt with the goods or with the carrier. The accused-respondent after publication of public notice promptly claimed the catechu as well as the boat stating that he was the owner thereof. The D.Ws. testified that the goods were seized at the Dhubri Minghat.
14. We have examined the evidence carefully and we have not found the view taken by the trial Court to be unreasonable. It is not a case involving exceptional circumstances for conviction of the accused-respondent after setting aside acquittal. It has not been pointed out to us that the Court below has omitted to notice any important point against the accused-respondent. It is settled law that if two views are reasonably possible the trial Court having taken one favourable to the accused, it would not be open for this Court to set aside the acquittal taking the other view in the matter. As was held in Bhim Singh v. State of Maharashtra, AIR 1974 SC 286 : 1974 Cr. L.J. 337 when two reasonable views could be possible the High Court could not set aside the acquittal. If in closely balancing the probabilities of a case, two views, one indicating conviction and the other indicating acquittal, were reasonably possible the High Court would not set aside the acquittal. In Dhan Kumar v. Municipal Corporation of Delhi, AIR 1979 SC 1782 : 1979 Cr.L.J. 1342 it was reiterated that if two views on the defence are reasonably possible, one favouring acquittal and the other conviction, the High Court should not reverse the order of acquittal. Similarly, in Babu v. State of U.P.-AIR 1983 SC 308 : 1983 Cr. L.J. 334 it was held that if two views are possible the High Court should not interfere with acquittal, even if the other view was possible, as the trial Court had the advantage of seeing and hearing the witnesses.
15. Applying the foregoing principles of law we consider it safe to uphold the judgment of acquittal which we hereby do. The appeal is accordingly found to be without merit and it is dismissed.