1. The two respondents were convicted by the Judicial Magistrate, First Class, Bhiwandi under Section 135(b)(i) of the Customs Act and under Sections 3 and 4 punishable under Section 5 of the Import and Export (Control) Act, 1947 and each of them was consolidated sentenced to suffer R.I. for two years and to pay fine of Rs. 1000/- (i/d of payment of fine to suffer R.I. for 6 months). They preferred an appeal to appeal to the Sessions Court, Thane i.e. Criminal Appeal No. 19 of 1976. The Additional Sessions Judge, Thane by his judgment dated 14.7.1976 allowed the appeal and set aside their convictions and sentences and acquitted them. Aggrieved by this decision of the Sessions Court the State of Maharashtra has preferred this appeal. Respondent No. 2 is reported to have died during the pendency of this appeal.
2. On prior information Mr. Patankar Inspector from flying squad of Customs kept a watch near Avela village on Ahmedabad-Bombay road along with certain other officers of the Customs on 12.6.1969. At about 10 A.M. they were at the cross road at Pachhapur when they noticed the truck driven by respondent No. 1 with respondent No. 2 sitting by his side coming from Ahmedabad side. However near the crossing the truck took a turn and started going back towards Ahmedabad. So the officers chased the truck and intercepted it. The truck was covered with a tarpaulin and when asked respondent No. 1 who was driving the truck told that there were vegetable bundles in the said truck. On peeping inside through the tarpaulin Mr. Patankar saw that below the vegetable bundles there appeared to be some gunny bags and so he ordered the respondent to remove the covering of the truck. In the beginning the respondents were reluctant to do so and were hesitating, but when the officers persisted the respondent No. 1 told that there were some bundles of 'purchutant' article in these gunny bags. We are told that the word 'purchutant' is a Gujarati word meaning 'sundry' articles. When the truck was being taken towards the Customs office, on the way near Sholar village one tyre of the truck burst. The goods were therefore taken into another truck and were taken to the office of the Customs where they were seized under a panchnama. Below 124 vegetable bundles were found 94 gunny bags containing mechanical lighters, polyester fibres of Japan make and metallic yarn made in Japan. All goods found were worth Rs. 6,09,785/-. Statements of the two respondents were recorded by Superintendent Verma. After obtaining necessary sanction a complaint against the respondents was filed in the Court of Magistrate at Bhiwandi on the allegation that they were found in possession of the above stated contraband goods which were seized in the reasonable belief that they were smuggled, and the respondents were found carrying, harbouring, concealing or otherwise dealing with these goods, which they knew or had reason to believe were liable for confiscation under Section 111 of the Customs Act and when they had no import licence for the same.
3. The respondent No. 1 admitted the seizure of the contraband goods from the truck and that he was driving the said truck. The respondents admitted that they had no licence for the contraband goods found with them. They however contended that they had no knowledge about the contents of the packages which were found in the truck. Their contention was that when the truck was loaded they were not present and one Bhiku Atmaram alone had gone to Varsi Transport Company where the truck was loaded and they were told the truck was to carry some vegetable bundles and sundry articles and the loaded goods were already covered with the tarpaulin covering when respondent No. 1 took charge of it for driving the said truck to Bombay. In proof of this defence respondents examined Bhiku Atmaram who supported their version.
4. The trial Court disbelieved the defence evidence and the defence witness and convicted and sentenced the respondents. However, the lower Appellate Court took a different view and acquitted them.
5. As observed by the lower Appellate Court the circumstances in the evidence against the respondents were :- (1) At the cross roads near Pachhapur the respondent No. 1 turned his truck back and started going back to Ahmedabad after seeing the Customs Officers; (2) When questioned by Mr. Patankar regarding the articles in the truck, in the beginning respondent No. 1 had said that vegetable bundles were there in the truck and he had not told at that time about the gunny bags containing some other articles. When again questioned it was only then that he said that below the vegetable bundles were gunny bags of 'purchutant' i.e. 'sundry' articles; (3) The respondent had no receipts or vouchers for these articles though he had vouchers for the vegetable bundles; (4) The respondent No. 1 was not easily ready for taking search of the truck. Besides these circumstances it was contended before the lower Appellate Court on behalf of the prosecution that assistance was available from Section 138A of the Customs Act, for raising a presumption in favour of the prosecution and throwing the burden on the respondents-accused, to show that they had no conscious possession of the contraband goods found in the truck.
6. The lower Appellate Court considered these circumstances and came to the conclusion that these circumstances were not all substantiated and the only circumstance which could really be said to be there against respondent No. 1 was his turning that truck back and driving it back towards Ahmedabad after spotting the Customs Officers. It would seem to us that by itself this cannot necessarily show any guilty conduct on the part of respondent No. 1 nor can it by itself establish that he had knowledge of the contraband goods he happened to be carrying in the truck. Such a conduct could flow from several considerations one of which could be the normal sense of fear a driver may have on spotting Customs Officers on the road, more particularly if he was not himself present at the time the goods were loaded in the truck. As regards the provisions of Section 138A of the Customs Act, as also of Section 123 of the said Act it would seem to us that these provisions were introduced in the Customs Act for the first time in the year 1973 and it is doubtful whether recourse could be had to these provisions in respect of the offence committed in the year 1969. The burden of proof for showing conscious possession of the respondent No. 1 would then be on the prosecution. It would seem to us that on the facts revealed in the present case, the view taken by the lower Appellate Court could not be said to be an unreasonable view and we feel this is not a case which would call for interference in an appeal against an acquittal merely on the ground that another view could possibly be taken. We are inclined to this view, more particularly because of the facts that the offence is alleged to have been taken place in the year 1969 and the respondent No. 1 was acquitted by the lower Appellate Court of the offence in the year 1976, and this is certainly not a case which would call for interference in an appeal against acquittal so many years after the offence was committed, now in the year 1982. In this view, we see no substance in this appeal.
7. The appeal fails and is dismissed. The bail bond of respondent No. 1 shall stand cancelled. No orders are necessary regarding respondent No. 2 since the appeal against him stands abated on his death.