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State (Collector Central Excise) Vs. Tapan Kumar Shome - Court Judgment

LegalCrystal Citation
SubjectCustoms
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 36 of 1980
Judge
Reported in58(1984)CLT127; 1985(5)ECC23; 1984(18)ELT278(Ori)
ActsCustoms Act, 1962 - Sections 101, 107, 111, 123, 135 and 135(1); Evidence Act - Sections 24 and 25; Constitution of India - Article 20(3)
AppellantState (Collector Central Excise)
RespondentTapan Kumar Shome
Appellant AdvocateC.V. Murty, Central Standing Counsel
Respondent AdvocateS.K. Mohanty, Adv.
DispositionAppeal dismissed
Cases ReferredShantilal Mehta v. Union of India and Ors.
Excerpt:
.....the appellate court has recorded an order of acquittal which does not call for interference by this court in appeal. 1276. the driver of the vehicle was the best person to say as to how and under what circumsatnces he had left the vehicle with p w 2. there was no evidence that at any stage during the enquiry by the customs officer, a statement of the driver had been taken. the reasonable belief can be entertained either on the basis of external indicia or on the basis of some internal information that the good has been illegally imported into india in contravention of prohibition imposed and reasonable belief cannot be based on suspicion or speculation......are under challenge in this appeal.2. the respondent, it was alleged, along with another co-accused person, namely, sanjeev ghose, was dealing with smuggled cars of foreign make without authority and upon receiving information about this, the superintendent of central excise (p w 4), being accompanied by the inspector of central excise (p w 1), then stationed at cuttack, visited baripada on november 16, 1972 and seized as per ext. 1, from the premises of sital prasad ghose (p w 2) brother-in-law of the respondent a datsun car of foreign make (m o i) bearing registration plate no. dlk 7813 which, in the course of enquiry, was found to be a number assigned to a buick car of foreign make, which had been left by the driver of the respondent as the engine got trouble on its way from.....
Judgment:

B.N. Behera, J.

1. The judgment and order of acquittal recorded by the Court of appeal reversing the order of conviction passed against the respondent, who stood charged Under Section 135(1)(b) of the Customs Act (the 'Act', for short) for dealing with a 'Datsun' car of foreign make and being in possession thereof without any authority knowing it to be liable to confiscation under seetion 111 of the Act, finding him guilty of the charge and convicting him thereunder and sentencing him to pay a fine of Rs. 3,000/- and in default of payment thereof, to undergo rigorous imprisonment for a period of three months, are under challenge in this appeal.

2. The respondent, it was alleged, along with another co-accused person, namely, Sanjeev Ghose, was dealing with smuggled cars of foreign make without authority and upon receiving information about this, the Superintendent of Central Excise (p w 4), being accompanied by the Inspector of Central Excise (p w 1), then stationed at Cuttack, visited Baripada on November 16, 1972 and seized as per Ext. 1, from the premises of Sital Prasad Ghose (p w 2) brother-in-law of the respondent a Datsun car of foreign make (M O I) bearing registration plate No. DLK 7813 which, in the course of enquiry, was found to be a number assigned to a Buick car of foreign make, which had been left by the driver of the respondent as the engine got trouble on its way from Bangalore to Calcutta and a written statement (Ext. 2) had been made by p w 2 who had handed it over to p ws. 1 and 4 stating that the driver of the respondent had left M O I with him. P w 2 had approached the respondent in Calcutta to bring back the vehicle and the latter had assured that he would take steps for it. The respondent had made a confessional statement (Ext. 4) before p w 3 on November 27, 1972 while p w 3 was the Inspector of Customs and Central Excise, Preventive and Intelligence Branch, Customs House, Calcutta admitting to be in possessian of the car in question. In the course of enquiry, Sanjeev Ghose, the absconding co-accused person, appeared before p w 4 on November 1972 and submitted an application claiming the seized car as having been purchased by him from Devraj of Delhi and he produced a registration certificate (Ext. 3) which on verification was found to be in respect of a motor cycle and the registration book was missing. P w 5 took steps for sanction to prosecute both the respondent and the co-accused Sanjeev Ghose, obtained the order of sanction (Ext. 6) from the Collector of Customs and made a petition of complaint. The respondent's case was that he had nothing to do with the car in question and that he had given the statement (Ext. 4) under threat by the Customs authorities.

3. To bring home the charge against the respondent, the prosecution had examined five witnesses. As already indicated p ws. 1, 3 and 4 were officers of the Central Excise and Customs. P w 2, the brother-in-law of the respondent in whose premises the car had been left, had testified about it. He had given two written statements (Exts. 2 and 7/1) to the Customs authorities. P w 5, an Advocate at Baripada, had written out Ext. 7/1. The respondent had not examined any witness in his defence.

4. On a consideration of the oral and documentary evidence placed before him, the learned Chief Judicial Magistrate accepted the case of the prosecution and recorded an order of conviction holding that the respondent was in possession of the vehicle in question having the knowledge that the car was liable to confiscation Under Section 111 of the Act. The respondent successfully apealed to the Court of Session and the learned Sessions Judge negatived both the conclusions arrived at by the trial court. It is thus that the matter has come up in appeal to this court against the order of acquittal recorded by the learned appellate Judge.

5. While Mr. Murty, the learned Standing Counsel for the Central Government, has challenged the findings recorded by the appellate court as unfounded and unreasonable, it has been submitted on behalf of the respondent by Mr. Mohanty that the trial court wrongly held the respondent to be guilty of the charge and for good and convincing reasons, the appellate court has recorded an order of acquittal which does not call for interference by this court in appeal.

6. Some settled principles with regard to the powers of an appellate court while dealing with an appeal against acquittal may be borne in mind. When two views on the evidence are reasonably possible and the order of acquittal does not suffer from illegality, manifest error or perversity, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal. Even if it is possible to take a different view, there should be no reversion of the order of acquittal if the view taken by the acquitting court is reasonably possible.

7. Under Section 135(1)(b) of the Act, 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 of the Act, his act becomes culpable. In the instant case, the charge against the respondent was that he had been dealing with a foreign made Datsun car and was in possession of the same without any authority, knowing the same to be liable to confiscation Under Section 111 of the Act. An accused person must have actual control over it. Keeping or possession need not be as owner or purchaser (See State of Maharashtra v. Natwarlal Damodardas Soni-AIR 1980 S.C. 593). The prosecution has, however, to establish that the contraband article was in conscious possession of the accused (vide J.A. Naidu etc. v. State of Maharashtra-AIR 1979 S.C. 1537- 1979 Crl. L.J. 962). The burden is on the prosecution to establish that the goods in question had been smuggled and that the accused knowing or having reason to believe that the goods was of that character, was in possession or was in any way concerned in dealing with it in any manner. The falsity or otherwise of the defence cannot be a ground for convicting a person and it is the duty of the prosecution to prove beyond doubt that the accused comes under the purview of Section 135 of the Act.

8. Section 123 of the Act provides :

'Burden of proof in certain cases-(I) Where any goods to which this section applies are seized under this Act in the reasonable belief that they are not smuggled goods shall be-

(a) in a case where such seizure is made from the possession of any person,-

(i) on the person from whose possession the goods were seized ; and

(ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person ;

(b) in any other case, on the person, if any, who claims to be the owner of the goods so seized.

(2) This section shall apply to gold, diamonds, manufactures of gold, diamonds, watches, and any other class of goods which the Central Govt. may by notification in the Official Gazette specify.'

As has been rightly observed by the appellate court and submitted by the learned counsel for both the sides before me, this section would not apply to this case as the Central Government has not specified vehicles as a class of goods coming under the purview of Section 123 of the Act.

9. In order to establish that the respondent was in possession of and had been dealing with the car in question, no evidence had been led by the prosecution with regard to acquisition of the car by the respondent apart from a statement (Ext. 4) made by the respondent coupled with two statements (Exts. 2 and 7/1) made by p w 2, his brother-in-law and the evidence of p w 2. Coming first to the evidence of p w 2 and the two statements made by him, he had not categorically deposed that the car had been acquired by the respondent or was in his possession or control. According to this witness, one driver left the car ( M O I) in his premises telling that the car belonged to the respondent. Having said so, he again gave a go-by to this statement and gave out that the driver did not tell him that the car belonged to the respondent. In any view of the matter, when a witness is not admissible being heresay. In this connection, reference may be made to the observation of the Supreme Court in Bhugdomal Gangaram and ors. etc. v. State of Gujarat-AIR 1983 S.C. 906 : 1983 Crl. L.J. 1276. The driver of the vehicle was the best person to say as to how and under what circumsatnces he had left the vehicle with p w 2. There was no evidence that at any stage during the enquiry by the Customs Officer, a statement of the driver had been taken. He had not been examined for the prosecution at the trial. P w 2 had testified that the respondent had told him when he was approached by him that he would ask the driver to get back the car as quickly as possible. This would not mean that the respondent was the owner and had acquired the car or was in possession thereof. It could be that he had undertaken to take steps for getting the vehicle which might be in the possession or control of another person. The evidence of p w 2 was that the respondent had told him that he was not the owner of the vehicle and that he had no connection with it. As rightly observed by the learned Sessions Judge, Exts. 2 and 7/1, the two statements handed over by p w 2 to the Customs Officer would not show that the respondent had acquired possession or was in control of the vehicle.

10. The only other evidence in this regard was the confessional statement (Ext. 4) made by the respondent before p w 3. The confessional statement made to the Customs Officer is admissible in evidence and is not hit by Section 25 of the Evidence Act or Article 20(3) of the Constitution. (See Romesh Chandra Mehta v. State of West Bengal- AIR 1970 S.C. 940 and Harbans Singh Sardar Lenasingh and Anr. v. The State of Maharashtra and Anr. - AIR 1972 S.C. 1224. There is no substance in the contention raised on behalf of the respondent that p w 3, then an Inspector of Customs and Central Excise, Preventive and Intelligence Branch, Customs House, Calcutta, had no authority Under Section 107 of the Act to take a statement from the respondent as at the stage of hearing of this appeal. The learned Standing Counsel for the Central Government has referred to a notification issued in November, 1968, wherein the Collector of Central Excise, who had also been functioning as the Collector of Customs, had authorised all officers of the Customs of and above the rank of Inspector of Customs to exercise powers enumerated in Sections 101 and 107 of the Act.

11. The case of the respondent was that under threat, the statement (Ext. 4) had been taken from him. As rightly held by the trial court, merely because a statement had been made to a person in authority, it would not be hit by Section 24 of the Evidence Act in the absence of evidence of threat, coercion or inducement. In this connection, reference may be made to the principles laid down in Pyare Lal Bhargava v. The State of Rajasthan-AIR 1963 S.C. 1094 Save and except a suggestion made to p w 3 with regard to threat, there was no material in support of this assertion of the respondent. In my view, the statement had been made voluntarily . by the respondent and as a matter of fact, the learned Sessions Judge did not also record a finding differing from the trial court's finding that the statement had been made voluntarily.

12. As has been observed by the appellate court, in order that a statement could amount to a confession, it must in terms, admit the offence or substantially all the facts which constitute an offence and an admission of a gravely incriminating character would not, by itself, amount to a confession, (See Pakala Narayana Swami v. Emperor-AIR 1939 P.C. 47).

13. In Ext. 4, the respondent had stated that he had got the car in question from Devraj of Delhi in exchange of a 'Toyata' car which had been acquired by him from Sri Raman Das who had purchased it from the State Trading Corporation of Calcutta and that while his (respondent's) driver was coming towards Calcutta, the car developed mechanical defects and was kept at Baripada with his brother-in-law (p w 2). As earlier indicated, there was no evidence from the side of the prosecution that the respondent had acquired this car. It would appear from the evidence of p w 4 that during the enquiry by the Customs authorities, the absconding accused Sanjeev Ghose claimed the car as belonging to him and had produced Ext. 3, the registration book, which on verification at Bangalore, was found to be a fake one. There was, however, no evidence of any of the authorities at Bangalore in this regard. As would appear from the confiscation proceedings (Ext. B) both the respondent and the absconding accused Sanjeev Ghose had been proceeded against for being in possession of the vehicle. The statement (Ext. 4) made by the respondent had been retracted at the trial and had not received any corroboration with regard to his possession of or control over the car in question.

14. Apart from the aforesaid considerations, it could not be assumed that merely because the car (M O I ) was of a foreign make, it had been smuggled into India without lawful authority. As earlier indicated, the presumption Under Section 123 of the Act had no application to this case. In the absence of circumstances indicating that an accused person has the knowledge or has reasonable belief that article in question is liable to confiscation Under Section 111 of the Act, a conviction Under Section 135 of the Act is not warranted. In Sheo Nath Singh v. Appellate Assistant Commissioner of Income Tax (Central), Calcutta and Ors.-AIR 1971 S.C. 2451 the expression reason to believe has been interpreted by the Supreme Court as meaning that the belief must be that of an honest and reasonable person based upon reasonable grounds.

15. As provided in Section 135 of the Act, a person must have the requisite knowledge or must have reasons to believe that the property is liable to confiscation. The word believe is a stronger word than suspect and it involves the necessity of showing that the circumstances are such that a reasonable man must feel convinced in his mind that the property with which he is dealing or is in possession is liable to confiscation Under Section 111 of the Act. It may not be sufficient to say that the accused is careless or that he has reason to suspect that the property is liable to confiscation.

16. Dealing with a case Under Section 135 of the Act, the Supreme Court has laid down in State of Maharashtra v; Natwarlal Damodardas Soni (supra) that the requuisite guilty knowledge or mens rea under clauses (a) and (b) of Section 135(1) of the Act can be established by circumstantial evidence also. This aspect has carefully been examined by learned Sessions Judge and he came to the conclusion, for the reasons recorded by him, that it could not be said from the evidence that the respondent had the requisite knowledge or that he had reason to believe that the car (M O I ) was liable to confiscation. The learned counsel for the respondent has invited my attention to the observation made by the Delhi High Court in Shantilal Mehta v. Union of India and Ors.-1983 E.L.T. 1715 (Del.) to the effect that the reasonable belief must be such as any reasonble man in the circumstances would entertain about the existence or non-existence of a thing. The reasonable belief can be entertained either on the basis of external indicia or on the basis of some internal information that the good has been illegally imported into India in contravention of prohibition imposed and reasonable belief cannot be based on suspicion or speculation. The view taken by the learned Sessions Judge that the respondent had no knowledge or reasons to believe that the car was liable to confiscation cannot be said to be unreasonable calling for interference by this Court in appeal against acquittal.

17. The circumstances placed before the trial court to which reference has been made by the trial and appellate courts may give rise to a grave suspicion regarding the complicity of the respondent, a government employee in the Railway, but suspicion, however grave, cannot take the place of proof in a criminal trial. In my view, the learned appellate Judge correctly found that the charge had not been brought home to the respondent and while doing so, did not disturb the order passed by the trial court for confiscation of the vehicle and in my view, rightly so, on the facts and in the circumstances of the case.

18. The appeal fails and is dismissed.


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