Assistant Collector of Central Excise, Madurai (O.R. No. 16/82) vs Michael Rex Fernando and another

K.M. Natarajan, J.—Criminal Appeal No. 379/84 is directed against the order of acquittal of accused 1 and 4 while the Crl Revisions No.

120 and 121/87 are directed by accused 2 and 3 against the judgment of the learned Principal Sessions Judge, Madurai confirming their

convictions u/s 135(1)(b)(i) of the Customs Act and the sentence of RI for one year and to pay a fine of Rs. 1000/- in default to undergo RI for 2

months.

The revision Petitioners and the Respondents 1 and 2 in the appeal and 3 others viz. who are accused 1 to 7 respectively were tried for the

charge u/s 135(1)(b)(i)of the Customs Act on the allegation that on or about 7th day of September 1982 at about 11:00 P.M. at Kodai Road in

T.N.A 721 lorry knowingly carried concealed National Video Cassette recorders-5(Japan Origin), Sharp Video Cassette Recorders-I (Japan

Origin), National Panasonic Stereo Cassette Recorders 22(Japan Origin), National Panasonic Cassette Recorders 23 (Japan Origin), Sony Solid

State Colour Television 1 (Japan Origin), Mandia Wrist Watches day and Date Automatic 570, Day and Date Originally 2604 (Swiss Made), Zip

Fasteners (JKK) 2,95,000/- (Japan Origin) all valued at Rs. 12,03,925/- and thereby committed an offence punishable u/s 111(d) of Customs Act

read with Section 3 of Import and Export (Control) Act, punishable u/s 135(I)(b)(i) of Customs Act. In support of the above charge, the

prosecution examined P.W.1 the Superintendent Central Customs Vigilance Department and Exs.P.1 to P. 12 were marked.

The case of the prosecution as evidenced from the oral and documentary evidence is briefly as follows On 7-9-1982 on information at about

12:00 noon P.W.1 and his officials were preceding towards Dindugal along Kodai Road, at that time lorry T.N.A.721 was parked near the lorry

Owners Association Building and A-3 to and A-5 were in the said lorry, when he enquired they would say that they are transporting only salt bags

and also confessed transporting smuggled goods. Thereupon when three bags were taken out and examined in their presence of two witnesses the

goods of the foreign origin were found concealed in their salt bags and they were seized under mahazar Ex.P.I. attested by their two witnesses and

the accused 1 to 3 since there was no facilities to examine those details of these materials the accused and their materials were taken to Madurai

Customs Office and on examination in detail after opening the bags they found National Video Cassette Records-5 (Made in Japan), Sharp Video

Cassette Recorder-1 (Made in Japan), National Panasonic Stereo Cassette Recorder-22 (Made in Japan), National Panasonic Cassette -

Recorder-23(Made in Japan0, Saniyo solid state colour T.V.-1 (Made in Japan), Mondia Wrist Watches Day and Date Automatic 570, Day and

Date original Watches-2604(Swiss made), Zip Fasteners(JKK) 2,95,000 (Made in Japan) and they are worth about Rs. 12,03,925/- and a list

was prepared under Ex.P.2 which also the witnesses as well as the accused 3 to 5 signed A-3 to A-5 also gave statements and they were

recorded and they are marked as Ex.P.3 to P.5. On the information furnished by them statement was recorded at Madurai Customs Office on 9-

9-1982 and the same is marked as Ex.P.6 and similarly A.7 statement was also recorded on 12-9-1982 under Ex.P.7 A.2 also gave statement

and that the same is Ex.P.8. On 1-10-1982 A.1 gave statement under Ex.P.9 Letter sent by A.1 was marked as Ex.P.10. After obtaining sanction

from the Joint Commissioner of Customs Department, Madurai Ex.P.11 the case was launched against all the accused 1 to 7.

When the accused questioned u/s 313, Code of Criminal Procedure they denied their complicity in the offence and they would state that their

statements were recorded by exercising coercion and undue influence. In addition A.1 would state that while he was in jail he was threatened by

Chirstopher Fernando and Royan and a statement was written to protect Ambrossee Fernando and was sent to Customs Department since they

threatened him that he will be done away with when he came from Out of jail. A3 to A5 having admitted presence at the time in the lorry, pleaded

ignorance of the contents of the smuggled goods. A.4 would state that he does not know anything about the smuggling and he wanted to visit

Bangalore in order to see the sight seeing and accordingly he got into the lorry along with his brother A.3 and he was caught by the Customs

Officials and the statement, was obtained from him under threat and coercion. Two witnesses were examined on the side of the accused D.W.1, is

the Bench Clerk of the Judicial Magistrate''s Court and through him Ex.D.1 and D.2 were marked and Ex.D.1 in the documents sent through the

Central prison authorities on the petition given by A.1 and D.2 is the reply sent from the Jail authorities D.W.2. is a resident of Madurai, 41

Karimmedu Mothilal Street and he would state that the said house is belonged to him and he was living in the upstairs portion and the ground floor

portion was let out to A.1 to A.5 A.2. is running a lorry transport under the name and style of ""Kasthuri Transport"" and he is owning one lorry and

on 7- 9-1992 Tuesday at about 8-30 AM after finishing his night duty (previous day) he returned to his house and at that time A.2 and A.4 were in

the ground floor and he went to his upstairs portion and after taking meals, again he came down to go to the shop and at that time he noticed that

''Kasthuri Transport'' lorry was parked in front of the house and A.3 and A.5 were in the lorry. A.4 asked A.3 as the lorry was going to

Bangalore, take him in the lorry to Bangalore for sight seeing and A.3 took A.4 in the lorry as he has never gone to Banglore previously and it was

at about 9:00 or 9:30 A.M. on 7-9-1982. He also noticed A.2 and A.4 were sleeping in the pial of the house on the night and of Monday at about

11:00 P.M. while proceeding to duty he came to know that the lorry was caught by the Customs Department. The learned trail Magistrate after

taking into consideration of the oral and documentary evidence and for the reasons assigned in his judgment came to the conclusion that the

prosecution has not proved the charge in so far as A1 and A4 are concerned and consequently they were acquitted. However the learned trial

Magistrate came to the conclusion that the prosecution has proved charge against A.2, A.3, A.5, A.6 and A.7 and convicted them each for the

offence as u/s 111(a) of Customs Act read with S. 3 of the Import and Export (Control) Act, punishable u/s 135(1)(b)(i) of Customs Act, and

sentenced to undergo RI for one year each and to pay a fine of Rs. 1000/- in default to undergo RI for 2 months. Aggrieved by the same, A.2 and

A.3 preferred Criminal Revisions Nos. 120 and 121/87 respectively and the complainant has filed Criminal Appeal No. 379/84 against the order

of acquittal of A1 and A.4.

The learned Central Government Public Prosecutor vehemently argued that the confession statement given by the acquitted accused viz., A1

and A.4 are voluntary and the subsequent retraction pleaded by them in 313 Statement is an after thought and that will not in any way affect the

voluntary nature and genuineness of the statement given by those accused. Further the details furnished by these accused in the confession

statements Exs.P.9 and P.4 are matters which are in their exclusive knowledge only and as such, the statements given by A1 and A4 are voluntary.

The learned trial Magistrate ought to have convicted them, taking into consideration of their confession statements and the circumstances of the

case. The judgment of the learned Magistrate is based upon rare conjunctures and surprises and has to be set aside. He would submit besides

confession statement as regards A.1 is concerned, admittedly A.1 was produced by the counsel before the Customs Authorities and his statement

was recorded only in the presence of his counsel and therefore, the contention that the accused No. 1 was induced or exercised to give a

statement is without any basis. There is so much contradiction between P.9 and P.10 statement given by these accused. He would submit that

Ex.P.9 statement given by this accused in the presence of advocate is corroborated by the statement given by the other accused. Ex.P.10

statement does not affect the contents of Ex.P.9. The learned trial Magistrate is wrong in saying that Ex.P.10 letter is a faulty one and not based on

facts. He would submit that it is well established proposition that the confession statement given before the Customs Officials are admissible.

Accordingly as already stated, there is no impediment. As regards A.4 is concerned he would submit that the reasonings, of the Judge for

acquitting A.4 are erroneous and refers A.4 is none other than the son of A.2 and brother of A.3 A.2 is the owner of the lorry and A.3 is the driver

of the lorry. The presence of A.4 at the time of occurrence is admitted by A.4 along with other accused. This accused also gave statement. He also

made retraction and that retraction is a belated one. Hence the trial Court failed to note the admission of the accused for the commission of the

offence and pray for the interference by this Court with the order of acquittal.

Per contra the learned Counsel for the accused submitted that the alleged confession statements are not voluntary and true and in any event they

were retracted at the earliest point of time and they cannot be the basis for conviction. In fact all the witnesses were cross examined and during

cross examination also statements were retracted and questions were on the basis of retracted statements. The mere fact among several accused

there were confession statements and that they were retracted in the absence of independent corroboration and any other material no conviction

can be maintained. As regards A1 is concerned, it is submitted by the learned Counsel that the 2nd statement was obtained while he was in

custody after he was interviewed by interested persons and it is evidenced by Ex.P.1 the interview application and other records. No reliance can

be placed to these statements and except Exs.P.9 and P.10 there is no other evidence to connect these accused to this crime. Admittedly he was

not present at the time of the seizure of the goods and in support of his contention, he relied on case laws. As regards A.4 the learned Counsel

vehemently argued that though admittedly he was present he came there only for the purpose of visiting Bangalore for sight seeing and the trial

Court has accepted the said contention. He would submit that admittedly he is not the driver or cleaner of the lorry and other persons available and

he simply seated along with them in the front and besides that there is nothing to show that he is in any way concerned with the alleged act of

smuggling. On the side of the prosecution except the retracted statements, there is no evidence to connect the accused with the alleged offence and

as such, the learned trial Judge was justified in acquitting both A1 and A4. He would submit that the mere fact A4 was present when the recovery

was made unless there is material to show that he was in possession of these goods he cannot be held liable. He would submit that since this

appeal was against A1 and A4, the good and strong ground must be there for interference with the order of acquittal and in the absence of the

same no interference is called for. The learned Counsel for the convicted accused viz., A2 and A3 who are revision Petitioners would submit that

as regards A2 and A3 are concerned except their retracted confession no other material to connect them with this crime. He would submit that the

reasons for acquittal will held good so far as these accused are also concerned.

The point for consideration is whether the order of acquittal as regards A1 and A4 is unsustainable for the reasons stated by the Appellant and

2) whether the conviction and sentence awarded to A2 and A3 is legal and correct and whether it requires any interference by this Court in these

revisions.

The charge levelled against these accused is that on 7-9-1982 at about 1-00 PM when the lorry TNA 721 was intercepted by P.W.1, and his

party A3 to A5 were in the lorry when examined 41 salt bags which was transported in the lorry zip fashioners, video cassettes, video recorder

wrist watches, colour Television of foreign origin were found transporting and since no records were produced for transporting the same, they

were charged and subsequently during investigation the other accused Al, A2, A.6 and A.7 were also involved in this case. Their statements were

also recorded. The statement of A3 to A.5 were also recorded at the time of the seizure of the goods. It is only on the basis of the recovery as well

as the statements recorded which was subsequently retracted by the accused and which was elaborately dealt with in the narration part of the

judgment. The case was launched against the accused. Now let us consider the appeal filed by the Assistant Collector Central as regards the

acquittal of A.1 and A.4 is concerned. The reasons for acquittal were given in paragraph 8 of the judgment by the learned trail Judge. According to

the learned trail Judge that the statement recorded from A.1 and A.4 Ex.P.9 and Ex.P.10 were obtained by way of coercion and undue influence

and it was not given voluntarily and similarly Ex.P.9 also subsequently obtained while he was in custody. In view of the fact that the statements

were retracted on the ground that they were obtained by compulsion and especially when there was nothing recovered from this accused and in

view of the Fact that there is material contradiction in the statements between Ex.P.9 and P.10. the contention put forward by the accused was

accepted by the learned trial Judge. It is also in evidence that in order to save Amburoose Fernando, he was forced to give such a statement

Ex.P.10 and it was sent to the customs officials through the Jail authorities. Though P.W.1 admitted that A.1 was produced by one advocate but

he pleaded ignorance and stated that he does not know whether he was an advocate for Amburose Fernando. P.W.1 also admitted that he

examined Amburose Fernando in this case, though it is subsequent to the filing of the complaint. But he would admit that he was in search of that

person and that he could not be secured, even prior to the filing of the complaint. He subsequently submitted that Amburose Fernanna was never

absconding and he know where he was staying. A suggestion was also put to him that Amburose Fernando was an important person who indulged

in smuggling business. A1 was produced by an advocate is evidenced from the evidence of P.W.1. It is stated that it is only with a view to help

Amburose Fernando such statement was obtained from Al is clear from the evidence of P.W.1 and so, the contention of the learned Counsel for

the Accused No. l that confession statement was obtained from A.1 by exercising undue influence and coercion, is quite acceptable and the

learned trial Judge has rightly accepted the same. The learned Counsel for the accused also observed the Ex.P.9. and P. 10 are mutually

contradictory and they are not consistent and Ex.P.9 and P. 10 were retracted and except that there is nothing to connect this accused with the

offence in question. The statements given by the other accused were also retracted. From Ex.D.l it is clear that on 21-10-1982 one Christopher

Fernando and one Royan have seen A.1 in the jail by applying petition for seeing A.1. However there are contradictions in between Exs.P.9 and

P. 10 and the circumstances probably the contention that the statement was obtained from A.1 is only to help Amburose Fernando. Therefore, the

trial Court found that Ex.P.9 and P. 10 were not given by A.l. voluntarily and they were obtained By exercising undue influence and coercion as

alleged by A.1. The learned Counsel for the Appellant argued that the retracted statement also can be taken into consideration as the basis for

conviction, and that the statements of the other accused is corroborative piece of evidence and there is not much contradiction in between Ex.P.9

and Ex.P.10. As rightly contended by the learned trial Judge, there is no necessity for sending Ex.P.10 when Ex.P.9 was given voluntarily. Hence

this Court is of the view that in the circumstances of the case, the learned trial Judge has perfectly justified in not convicting the accused on the

basis of the alleged two confession statements which are not consistent and which are contradictory and which were retracted at the earliest point

of time. The trial Judge has elaborately discussed this aspect in his judgment and found that the statements were not given by A.1 voluntarily and

they were obtained by exercising undue influence and coercion and there is nothing to connect this accused with this crime in question. The learned

Counsel for the accused also drew the attention of this Court to the decision reported in 1970 M.L.J. (Cri) 68 Mohd. Hussian Umar v.

Dalipsinghji where in the Apex Court held as follows:-

The combined effect of Section 133 and 114 illustration (b) of the Evidence Act is that though a conviction based upon accomplice evidence is

legal the Court will not accept such evidence unless it is corroborated in material particulars. The corroboration must connect the accused with the

crime. It may be direct or circumstantial. It is not necessary that the corroboration should confirm all the circumstances of the crime. It is sufficient if

the corroboration is in material particulars. The corroboration must be from an independent source. One accomplice cannot corroborate another

The learned Counsel for the accused also drew the attention of the Apex Court to the decision reported in 1952 MWN (Cri) 107- Kashmira

Singh v. State of Madhya Pradesh wherein it has been held as follows:

The confession of a co-accused is not evidence in the ordinary sense of that term. It can only be used in support of other evidence, that is, to lend

assurance to other evidence against a co-accused.

The proper way to approach a case of this kind is first to marshall the evidence against the accused excluding the confession altogether from

consideration and see whether, if it is believed, a conviction could safely be based on it. In cases where the Judge is not prepared to act on the

other evidence as it stands even though, if believed, it would be sufficient to sustain a conviction, the Judge may call in aid, the confession and use it

to lend assurance to the other evidence and that fortify himself in believing what without the aid of the confession he would not be prepared to

accept. Save in exceptional circumstances, one accomplice cannot be used to corroborate another, nor can he be used to corroborate a person

who though not an accomplice is no more reliable than one.

Applying the ratio laid down in the above decisions, this Court is of the view that it cannot be held that the order of acquittal is not sustainable.

As regards A.4 is concerned the learned Counsel for the accused vehemently argued that admittedly though he was present in the lorry along

with A.3 and A.5 it is his consistent case that he was the son of A.2 proprietor of the lorry and he got into the lorry only in order to sight seeing

Bangalore and A3 is the driver. The prosecution also examined witnesses to probablise the said version and that he got into the lorry in order to

sight seeing Bangalore and that he knew him personally, and that he was seated in the Cabin along with A.3 and A.5. There is absolutely nothing to

disbelieve his evidence. The alleged statement given by A.4 was subsequently retracted and he has also given reason that the statement was

obtained from him is not true and voluntary and it was obtained by exercising undue influence and coercion. Except the retracted statement, there is

absolutely nothing to connect him with the crime in question. The learned Counsel for the Respondent submitted in this connection that mere

presence at the time of the recovery of the contrabands there is no other evidence, and when there is no evidence that he was conscious of the

possession of the smuggled goods in the lorry he would not be held liable. In support of this contention, he relied on the decision reported in 1957

MWN (Cri) 15 : 1957 MLJ (Crl.) 39 (N.O.C.) - Thangaraj v. State wherein it was held the accused ""that accused was in possession of the

fermented wash and was guilty u/s 4(1)(g) of Prohibition Act.

It was held as follows:

A person cannot be said to be in possession of a thing, the existence of which he is not aware of. Mere physical presence of an accused in close

proximity to a prohibited article will not by itself amount to possession of the article by the accused so as to make him liable for punishment under

the law which prosecutes the possession of such article.

It was further held that

When an incriminating article is found in the house occupied by several persons the onus is not thrown upon these persons to establish their

innocence and Section 106 of the Evidence Act can have no application when an article is found concealed in a house occupied by a number of

persons.

Every case must depend upon its particular facts and the Court must consider each case and come to a conclusion whether it is proved that the

incriminating article is in the possession or under the control of any particular person or in the possession or under the control of more than one

person.

The learned Counsel for the Respondent also drew the attention of this Court to the decision reported in 1993 Supreme Court Cases (Criminal)

page 348- Ram Milan v. State of U.P. wherein it was held as follows:

The Appellate Court while reversing the order of acquittal has to consider the entire evidence in detail. It should be slow in reversing the order of

acquittal and unless there are good and strong grounds the acquittal should not be interfered with.

The learned Counsel for the Appellant also relied on the decision reported in 1987 CLJ 1119 - Babu Lodhi v. State of U.P. wherein it was held

that in a case of appeal against acquittal the High Court should not interfere merely because two views are possible. However the judgment of trial

court found to be based on perverse reasoning and the prosecution evidence also not affording scope for two views to be taken, the High Court is

entitled to reserve judgment of acquittal.

This decision is not applicable to the facts of this case as in the instance case, there is absolutely nothing or record to take a different view than the

one which was taken by the trial Court. For all these reasons, this Court is of the view that the order of acquittal of accused 1 and 4 passed by the

trial Judge is perfectly legal and correct and there is nothing to interfere with the finding of the trial Court. Hence the order of acquittal passed by

the trial Judge as regards A.1 and A.4 is hereby confirms and the appeal preferred by the Central Government is dismissed.

Now coming to the two revisions filed by accused 2 and 3 in Crl. Revision Nos. 120 and 121/87, the learned Counsel for the revision

Petitioners submitted that the fact that A2 is the owner of the lorry and A.3 is the driver of the lorry is not disputed. But the question is whether

they had participated and they had committed any offence as alleged. Admittedly A.2 was not present A.3 the driver of the lorry was present. That

the goods of foreign origin which contains Zip fasteners, video cassettes, video recorders, colour T.V., Wrist Watches worth about Rs. 12,

00,000/- were seized from the lorry is clearly established by the evidence of P.W.1, who raided and seized the lorry as well as the goods. A.3 also

made statement, the confession of A.3 and A.5 was that they used to park the lorry in the ""Veluswamy Lorry Booking Office"" and they used to

load the lorry and thereupon they used to take the lorry entrusted to the place where they asked to go and that they will not examine the goods

only after the information received from the Booking Office, they used to write the trip sheet and take the lorry. Accordingly the lorry was taken on

6-6-1992 and the statement was also recorded on the same day. The statements given by A.2 and A.3 were also recorded. According to the

prosecution the lorry which belonged to A.2 with the help of booking office, A.6 and with the assistance A.3, A.5 and A.7 concealed smuggled

goods were transported as evidenced from the statements and accordingly they were convicted. As regards A.2 and A.3 they were in a different

footing than A1 and A.4, A.2 who is owner of the lorry cannot plead ignorance Similarly the driver of the lorry A.3 was caught red handed at this

lorry itself at the time when the lorry was seized with smuggled goods while it was transporting. Besides that he made confession statement. No

doubt it was later retracted. Certainly his presence and recovery of some goods is a corroborative circumstance and that itself is sufficient for

convicting him. A.2 also gave confession statement and that the same was found to be true and voluntary and there is nothing to show that it was

obtained by exercising undue influence and coercion, even though it is stated that it was retracted at the later stage. The Court below after

considering the entire evidence come to correct conclusion that the accused 2 and 3 were liable for the offence u/s 11l(d) of Customs Act read

with Section 3 of Import and Export (Control) Act punishable u/s 135(1)(b)(i) of the Customs Act. The learned Counsel for the revision

Petitioners is not able to make out any case to interfere with the finding of the Court below. Accordingly their convictions are confirmed. HGW-

ever the learned Counsel for the revision Petitioners submits that this occurrence took place in the year 1982 about 11 years ago, and A.2 was in

custody for merely 2 months in connection with this case and his lorry was also forfeited and A.3 was in jail for one month and if they are sent

back to jail, they will be put to serious hardship and so, they should be dealt with leniently. The learned Public Prosecutor leaves the question of

sentence to the discretion of this Court. Having regard to the facts and circumstances of the case and having regard to the submissions made by the

learned Counsel for the revision Petitioners, this Court feels that the ends of justice would be met by reducing the sentence of imprisonment passed

against A.2 and A.3 to the period already undergone and to pay a fine of Rs. 2500/- each, in addition to a fine of Rs. 1000/- already imposed, in

default to undergo RI for 6 months. With the above modification, these criminal revisions are dismissed. Time for payment 2 months.

Thiru C.S. Dhanasekaran Advocate was appointed amicus curial to defend the Respondent/accused 1 and 4 The learned Counsel for

Respondents/accused 1 and 4 took pains in marshalling the case laws and the facts and he assisted this Court in delivering the judgment in the this

appeal. I express my deep appreciation of the valuable assistance rendered by Thiru C.S. Dhanasekaran for the disposal do this appeal.